Indiana Law Review


Indiana Law Reviei;«^
Vol. 17 1984 Number 3

The Indiana Comparative Fault Act at
First (Lingering) Glance

Lawrence P. Wilkins*

I. Introduction

The principle of comparative fault will become part of Indiana tort

law on January 1, 1985.' On that date, an injured party who was
partially at "fault"^ for his injury will no longer be subject to the

complete defense of contributory negligence in a tort action. Instead, a

plaintiff whose conduct satisfies the statutory definition of "fault" will

be entitled to recover damages reduced in proportion to that fault. If

the plaintiff's "fault" is assessed at greater than 50%, however, recovery
will be totally barred. The Indiana Comparative Fault Act is, therefore,

not a complete acceptance of the comparative fault principle because

the common law contributory neghgence bar continues to operate for
some injured plaintiffs who are not wholly responsible for their injuries.
In choosing to relegate contributory negligence to a subordinate role in

tort litigation, however, the General Assembly has taken an important

step and has brought Indiana in line with forty-one other states,^ the

federal government, and every other common law system in the world.
Because Indiana courts have continually deferred to the legislature

and have refused to implement comparative fault on their own,"^ it was

*Professor of Law, Indiana University School of Law—Indianapolis. B.A., The Ohio
State University, 1968; J.D., Capital University Law School, 1973; LL.M., University of
Texas School of Law, 1974.

Act of Apr. 21, 1983, Pub. L. No. 317-1983, 1983 Ind. Acts. 1930 (codified as

amended at Ind. Code § 34-4-33-13 (Supp. 1984)).
^The statutory definition of "fault" departs significantly from general common law

concepts of fault by including conduct that may not be, strictly speaking, characterized

as faulty behavior on plaintiff's part. See infra notes 32-46 and accompanying text. In

this Article, reference to a finding of "fault" under the Indiana Comparative Fault Act

will be distinguished from common law fault by the use of quotation marks.
^Those forty-one states include Georgia and Tennessee, two states with rather unique

approaches to comparative fault. See the discussions of those jurisdictions in V. Schwartz,

Comparative Negligence § 1.5, at 18-19 (1974); H. Woods, The Negligence Case:

Comparative Fault §§ 4.1, 4.3 (1978).

^State V. Ingram, 427 N.E.2d 444, 448 (Ind. 1981); Rhinebarger v. Mummeri, 173

Ind. App. 34, 41, 362 N.E.2d 184, 187 (1977) (Buchanan, J., concurring).

687



6SS INDIANA LAW REVIEW [Vol. 17:687

inevitable that the legislature would finally act. The increasing acceptance

of apportionment of liability commensurate to fault in other states during

the 1960's and 1970's had made Indiana one of the last remaining
strongholds for the anachronistic doctrine of contributory negligence.^

Finally, by 1982, the tide of public policy favoring proportionate liability

was strong enough to persuade Indiana legislators that passage of a

comparative fault act was necessary.

Although statutory adoption of apportionment of liability may have
been inevitable, the precise system accepted by the General Assembly

was not. A pure comparative fault system was theoretically feasible, has
been the choice in several jurisdictions,^ and is the form recommended

by the National Conference of Commissioners on Uniform State Laws.^

However, political compromises necessary to enact some form of ap-

portionment of liability militated against whatever theoretical chances a

pure system may have had. In selecting one of the several available
models of modified systems, the Indiana legislature adopted the "greater

than 50%" system, the unique features of which this Article will examine.
Analysis of Indiana's Act will include: (1) functional considerations,

focusing on how the statute will operate and how tort litigation will be
affected by its operation^ and (2) policy considerations, focusing on

whether the apparent effects of the Act are intended and whether those

effects are desirable.^ Because the statute will not completely displace

common law tort principles, the discussion suggests possible interpre-
tations and ramifications of the Act in light of the common law. This
Article will demonstrate that these interpretations raise certain questions

which warrant immediate legislative attention. '° This Article will also raise

other questions which should be left for resolution through careful

consideration in case law."

II. General Features of the Act

A. Operation of the Apportionment Principle

The Act purports to apply to "any action based on fault" '^ arising

^See generally, V. Schwartz, supra note 3, § 1.2, at 2-3; H. Woods, supra note

3, at § 1.11.

"The following states have adopted, either by statute or judicial decision, a pure

form of comparative negligence: Alaska, California, Florida, Illinois, Louisiana, Mississippi,

New Mexico, New York, Rhode Island, and Washington. H. Woods, supra note 3, at §
4.2 (1978 & Supp. 1982).

'Unif. Comparative Fault Act § 1, 12 U.L.A. 36 (Supp. 1984) {See Commissioners'

Prefatory Note at 35-36) [hereinafter cited as Uniform Act].

*5ee infra notes 12-26, 76-85 and accompanying text.

''See infra notes 27-55, 306-406 and accompanying text.

'"See infra notes 56-75, 86-153, 154-162, 199, 306-406 and accompanying text.

''See infra notes 81, 86-153, 163-88, 192-98, 206-08, 237-39, 304-05, 449-501 and
accompanying text.

'^Ind. Code § 34-4-33- 1(a) (Supp. 1984). Although the statutory language appears



1984] FIRST GLANCE 689

from "injury or death to person or harm to property."'^ Apportionment

appHes whether the basis of HabiHty is neghgent conduct or willful,

wanton, or reckless conduct."*

In any two-party action to which the Act applies, the statute requires

the trial judge to instruct the jury to first assess the "percentage of

fault of the claimant, of the defendant and of any person who is a

nonparty.'"^ If the jury assesses the claimant's fault at greater than

50% of the "total fault," the judge will instruct the jury to return a

defendant's verdict.'^ However, if the claimant's fault is assessed at 50%

or less, the judge will instruct the jury to ascertain the total amount

of damages without regard to the claimant's fault. '^ Finally, the jury

will multiply the total damage figure by the percentage of fault assessed

to the defendant in the first step and render a verdict for the claimant

equal to the product of that multiplication.'^

In many cases, the "total fault" will simply be divided between the
plaintiff and the defendant. For example, if the plaintiff has incurred

a $10,000 injury, and the plaintiff has been assessed 30% of the fault,
then the jury will multiply $10,000 by the defendant's 70% fault and
enter a verdict against the defendant for $7,000. If the plaintiff had

been found free of "fault," then the verdict would have been for the

full $10,000. If the plaintiff had been assessed 51% of the fault, then
the "greater than 50% rule" would totally bar the plaintiff's recovery.

When multiple actors are involved, the procedure for rendering a
verdict is similar. The jury first determines the percentage of fault for

each actor, including the plaintiff.'^ If the plaintiff's "fault" is greater

than 50% of the "total fault" which caused the harm, then the defendants
are not liable.^o If the plaintiff's "fault" is 50% of the "total fault"
or less, then the jury will determine its verdict as described in the two-

party situation.^' In certain cases, the jury is instructed to determine the

"fault" of "nonparties" as well as those named in the action.'^ Con-
sequently, in a proper case, the combined percentages of the named

all-inclusive, it is modified by section 34-4-33-8 which states that the Act "does not apply

in any manner to tort claims against governmental entities or public employees" brought

under the Indiana Tort Claims Act. See infra notes 189-99 and accompanying text.

'^Ind. Code § 34-4-33-l(a).
''Id. § 34-4-33-2(a).

'^Id. § 34-4-33-5(a)(l). As will be seen in later discussion, the jury will consider the
"fault" of a "nonparty" only in certain cases. See infra text accompanying notes 200-

41.

"•IND. Code § 34-4-33-5(a)(2).
''Id. § 34-4-33-5(a)(3).

''Id. § 34-4-33-5(a)(4).

'"Id. § 34-4-33-5(b)(l).

^"M § 34-4-33-5(b)(2).

^'Id. § 34-4-33-5(b)(3), (b)(4).

''Id. § 34-4-33-5(b)(l).



690 INDIANA LAW REVIEW [Vol. 17:687

parties may total less than 100%. A "nonparty" is anyone subject to
liability for the plaintiff's injury who has not been joined in the action. ^^

The definition specifically excludes the plaintiff's employer. The "non-

party" definition was added by the 1984 amendments^"* in an attempt

to clear up a troublesome feature of the original Act concerning the

effect an employer's fault would have upon some plaintiffs' right of

recovery.-"

The jury's assessment of "fault" for persons not named in the action
can be crucial even though the named defendant's "fault" exceeds the
fault of the plaintiff. For example, if the plaintiff has incurred a $10,000

injury and two defendants have each been assessed \0% of the "fault"
and one nonparty actor has been assessed 20% of the "fault," then
the named defendants will not be hable. The plaintiff's 60% "fault"
is greater than 50% of the "total fault" involved in the incident which
caused the injury. However, if two nonparty actors have each been

assessed 20% of the "fault," and the named defendants' "fault" has
been assessed at 10% each, then the plaintiff's 40% "fault" is short
of the "greater than 50%" threshold and the plaintiff will recover from
the named defendants. Even though the combined percentages of the
named defendants is only 20% and the plaintiff was assessed more
"fault" than these defendants, each defendant is hable for $1,000.

The Act's fundamental concept is that a plaintiff who is in some
way partly responsible for his own injury is entitled to compensatory
damages reduced in proportion to the plaintiff's own fault. The concept
is not applicable, however, to all cases. If the plaintiff has contributed

a major element of culpable conduct, then recovery will be barred

altogether. That major element of fault is established at "greater than

50% of the total fault" producing the injury. ^^ The Act, therefore, is
not a clear break from the traditional contributory negligence doctrine

because the door of recovery is opened only for some plaintiffs who
are partly responsible for their injuries.

The legislature should open the door completely rather than continue
half-heartedly embracing comparative fault. The conceptual ambivalence

of a statute that adopts the apportionment principle while retaining the

total bar of contributory negligence is inherently complex, and fraught

with potential for confusion. Even though most legislatures have preferred

adoption of some modification of the pure comparative fault principle, ^^

no feature of the "greater than 50% rule" is legally more attractive

'-Id. § 34-4-33-2(a).

"Act of Mar. 5, 1984, Pub. L. No. 174-1984, 1984 Ind. Acts 1468.

^^See infra notes 200-34 and accompanying text.

^IND. Code § 34-4-33-5(a)(2), (b)(2).

^^H. Woods, The Negligence Case: Comparative Fault §§ 4.3-4.5 (1978 & Supp.
1982).



1 984] FIRSTOLANCE 69

1

than the pure form. Once the apportionment principle has been accepted,

Hmiting the principle to cases where defendants' acts are greater than

499/o of the fault cannot be justified on grounds of administrative

efficiency. Where a percentage point makes such a drastic difference,

litigation is more likely to arise from the complexities inherent in this

mongrel offspring of the apportionment principle and the contributory

negligence principle than would arise from either of the two parent

systems. Furthermore, much of the value of expanding the compensatory
function of tort law, which has been an important justification for the

move to comparative fault, is lost in the adoption of the "greater than

50% rule."2«

The Indiana Act borrows heavily from the Uniform Comparative

Fault Act adopted by the National Conference of Commissioners on

Uniform State Laws.^"^ The Uniform Act contemplates a pure system.

Unfortunately, the Indiana General Assembly disregarded the main thrust

of the model upon which it relied for many of its provisions. Apparently
choosing to ignore the experiences of other jurisdictions which have

successfully employed a pure system, it succumbed to the politically

more attractive incremental step^° and selectively adopted only part of

the Uniform Act's language.

Limited as it is, the Indiana Act is, nevertheless, a step in the right

direction. If political compromise was necessary to initiate the reform,

the Act must be viewed as a success. Yet, the Act must also be considered

a limited experiment with fault apportionment—an experiment which has
long been considered a success in other settings. If it succeeds in Indiana

it may lead to more comprehensive reform.
Important as the statute may be as an evolutionary step toward

pure comparative fault, it contains some flaws, even as a modified

system. Some of those flaws are produced by the cafeteria-style method
of selecting parts of the Uniform Act and rejecting other parts. ^' There

are other flaws which are more fundamental and bear no relationship

to Uniform Act provisions. ^^ Some flaws can and should be promptly
corrected by the legislature. Others can await and may benefit from the
slow tempering effects of the judicial process.

^**Expansion of the compensatory function under the "greater than 5007o" rule may
even prove to be largely illusory if the speculation that juries have long been applying

an informal comparative negligence principle is true. J. Ulman, A Judge Takes the
Stand 30-32 (1933). Cf. J. Frank, Courts on Trial 120-21 (1949). See also Keeton,

Creative Continuity in the Law of Torts, 75 Harv. L. Rev. 463, 508 (1962).
^'Uniform Act, supra note 7, § 1, at 36.

^°See generally Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 494 (1953).

^'See infra notes 35-75, 151-53, 306-406 and accompanying text.

"See infra notes 86-150, 190-99 and accompanying text.



692 I\DIA\A LAW REVIEW [Vol. 17:687

B. Section I: Coverage

Like the Uniform Act, the Indiana version governs "any action

based on fault that is brought to recover damages for injury or death

to person or harm to property."^'' Although the phrase is inelegant, the

coverage of the Act seems fairly clear. Both Acts fail, however, to-

specifically include injuries to relational interests. If one assumes that

the omission is attributable to the common failure to address these
interests, was unintentional, and that the Act applies to such cases, no

problems should arise. ''^ No policy supports a system which would permit
apportionment of fauh when a plaintiff proves destruction of a fence,
for example, but would deny apportionment of fault when a plaintiff

proves destruction of a family relationship. The statute's coverage lan-

guage should have simply included "any action based on fault" and

avoided specifying the types of actions covered. The language is serv-

iceable, though, as long as interpreting courts avoid a rigid construction

which excludes tort actions not expressly and specifically excluded by

the statute.

C. Section 2: "Fault'' Defined

The types of actions that the Indiana Comparative Fault Act covers

are obscured by the Act's definition of "fault. "^^ The basic definitional

stock is the Uniform Act's language, but that stock has been sprinkled

with Indiana legal ingredients which add a distinct flavor to the finished

potion. Both Acts define "fault" to include any act or omission that

is negligent or reckless toward person or property; however, the Indiana

Act adds "willful" and "wanton" to the types of acts and omissions

covered by the fault definition. ^^ The Indiana version also engrafts the

phrase "but does not include an intentional act"^^ onto the definition,

perhaps because of a concern that the addition of "willful" or "wanton"

might produce confusion. Both Acts include "unreasonable assumption

of risk not constituting an enforceable express consent, "^^ but following

that phrase, the Indiana Act includes "incurred risk."^^ The Uniform

Act includes conduct that "subjects a person to strict tort liability,"

"IND. Code § 34-4-33-l(l)(a).
'''While a wrongful death claim or loss of consortium may well arise from "the

injury or death of a person," the purpose of the action is to vindicate the invasion of

the plaintiff's relational interest in the person hurt or killed. See Green, Protection of
the Family Under Tort Law, 10 Hastings L.J. 237 (1959).

'-IND. Code § 34-4-33-2(a).
'"Compare Uniform Act, supra note 7, § 1(b), at 36, with Ind. Code § 34-4-33-2(a).
'iND. Code § 34-4-33-2(a).
"M; Uniform Act, supra note 7, § 1(b), at 36.
^^Ind. Code § 34-4-33-2(a).



1 984] FIRST GLANCE 693

''breach of warranty," and "misuse of a product for which the defendant

otherwise would be Uable.'"^" The Indiana Act omits these three phrases

from the definition/' Finally, both Acts contain the phrase "unreasonable

failure to avoid an injury or to mitigate damages."'*^ In the process of

attempting to identify the situations to which the Act applies, this

"patchwork quilt" definition has clouded the general concept of fault.

The first section, for example, invokes the apportionment principle

in "any action based on fault, "'^^ a phrase which would cause most

attorneys to expect intentional wrongdoing to be included by virtue of

the heavy content of fault in such torts. The Act, however, has defined

"fault" as something less than the common law concept of fault, since
section two specifically excludes intentional acts."^"^ This exclusion seems

curious. The Act is, after all, a comparative fault statute, not a com-

parative negligence statute. The limitations may be partially justified by
viewing it as a legislative attempt to add some balance to the Act's

operation upon plaintiffs' and defendants' interests. By excluding in-

tentional conduct from the definition, the legislature has denied the

benefits of apportionment to one class of defendants who have brought
major contributions of fault into the injurious incident."*^ The effect is

similar to the denial of apportionment to plaintiffs who have contributed
major proportions of "fault" to the incident. ^^

Significant potential for confusion enters this mixed-bag definition

of "fault" with the inclusion of "incurred risk."'*^ Some risk-incurring
conduct, whether intentional or not, may not be faulty. The same

''°Uniform Act, supra note 7, § 1(b), at 36.

^'The Indiana General Assembly deleted the phrases "subjects a person to strict tort

liability," "breach of warranty" and "misuse of a product for which the defendant

otherwise would be liable" which appeared in the state's original Comparative Fault Act.

Compare Act of Apr. 21, 1983, 1983 Pub. L. No. 317-1983, Sec. 1, § 2(a), 1983 Ind.
Acts. 1930, with Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 1, § 2(a), 1984 Ind.

Acts 1468 (codified at Ind. Code § 34-4-33-2(a) (Supp. 1984)).
^^Ind. Code § 34-4-33-2(a); Uniform Act, supra note 7, § 1(b), at 36.
^^IND. Code § 34-4-33-l(a).
^"A certain measure of "Humpty-Dumptying" has applied to this definition of "fault"

The Fundamentals of Legal Drafting 13, 101-04, 106, 108-09 (1965).
^The limitation presumably also applies to plaintiffs whose intentional acts produce

the injury. To the extent that the legislature contemplated the phrase as a limitation on
plaintiffs, the balancing justification loses its force. Nevertheless, the limitation remains

consistent with the notion that major contributions of fault by plaintiffs carry full

accountability.

^This balancing argument can be pressed too far. The point raised in the previous

footnote illustrates one instance where it weakens. Outside the context of the definitional

exclusion of intentional acts, the balance clearly favors tortfeasors. Compare a tortfeasor
who is 60% at fault with a plaintiff (in a different case) who is 60% at fault. The
tortfeasor is liable in proportion to her fault. The plaintiff must accept total accountability

for his injury.

^Tnd. Code § 34-4-33-2(a).



6^)4 INDIANA LAW REVIEW [Vol. 17:687

proposition is true with respect to assumed risk, but the legislature

included only "unreasonable assumption of risk not constituting an

enforceable express consent" in the definition/^ Common law concepts
of fault do not easily embrace the notions that "fault" includes some

but not all faulty conduct, and that the exclusion of intentional acts

may not mean what it says. Still, if one views the definition section as
merely a description of the circumstances that trigger apportionment,

one can comprehend that certain sets of circumstances invoke the ap-

portionment principle while others do not. However, viewing the statute

as such a description is something entirely different from accepting the

Act's "fault" as a redefinition of fault. Section two does not redefine

fault at all, but should be viewed rather as a more detailed statement

of section one's coverage. "^^ The legislature should have combined sections

one and two into a single coverage section rather than attempting to

construct a special codified definition of fault.

If the only effect of section two were that one would have to

reconstruct the section to understand it, then perhaps an informal un-

derstanding among judges and practitioners would foreclose difficulty
in appHcation. However, reading the first two sections in conjunction

induces an interpretation that is at odds with the purported function of

the Act and raises a spectre of misunderstanding. Strange as it may
seem, the ultimate conclusion of that interpretation would be that the

Act does not require comparison of fault, even though it declares oth-

erwise, but rather that the Act requires the comparison of causation.

This interpretation is produced by a combination of two otherwise

unrelated factors. The first is the relatively difficult task of quantifying

and apportioning fault when compared with the task of quantifying and
apportioning causation. The second is the Act's attempt to control the

types of actions and defenses to which apportionment applies by defining

"fault" in a way that distorts the concept of fault.
Because the concept of fault is blurred by section two, one construing

the statute may be inclined to search for a unitary concept enveloping

^"Id. This feature of the Act is discussed infra at notes 306-406 and accompanying

text. It is sufficient here to note that the definition of fault includes contradictory elements.

^'The section might be reconstructed, for example, into separate lists of actions and

defenses, like the following, which invoke the apportionment principle: >

Sec. 1 (a) This chapter governs any action based on:

(1) negligence, or

(2) willful, wanton or reckless misconduct that is brought to recover

damages for injury or death to persons or harm to property.

(b) This chapter governs any defense based on:

(1) contributory negligence,

(2) willful, wanton or reckless misconduct,

(3) unreasonable assumption of risk or incurred risk not constituting

an enforceable express consent, or

(4) unreasonable failure to avoid injury or to mitigate damages.



1984] FIRST GLANCE 695

the new formulation without disturbing the traditional meanings of fault.

The suggestion that section two could be understood to be simply a list

of actions and defenses is an example of this search for reconciliation.'^'

Conceptualizing a system of accountability is extremely difficult when

that system purports to apportion liability on the basis of fault but fails

to subject faulty actions to apportionment while affecting some actions

that are faultless. The statement that the following propositions can both

be true is almost incomprehensible: (1) intentional wrongful acts are not

subject to apportionment, and (2) some intentional and perhaps even

non-wrongful acts trigger the Act. Consequently, the difficulty in un-

derstanding the Act's definition of "fault" may be so great that courts,
attorneys, and jurors will seize upon causation^' as the reconcihng concept

and will compare the parties' causal contributions to the injury. A jury
would accordingly assign Hability proportionate to each actor's share of

causation. Such a verdict would declare, in essence, that the plaintiff

caused X^q of his own injury and that the defendant caused F% of
the plaintiff's injury.

This cause-comparison interpretation should be rejected because it

can easily produce damage awards which are not commensurate with

the actors' contributions of fault. Causation factors may remain constant
even though fault factors vary between similar fact situations. A pair
of hypothetical cases illustrate this problem. In both cases the following

facts exist: The plaintiff is a pedestrian who ran into the street and was
struck by a car; the car was driven by the defendant; the accident was

caused by the defendant's failure to watch for pedestrians and the

plaintiff's failure to watch for automobiles; each party's behavior was

an equal cause (50% each) of the plaintiff's injuries. In the first hy-
pothetical, the plaintiff dashed into the street to save a young child,

and the defendant was, on a dare, driving with her eyes closed. If the

jury employs cause-comparison, it will reduce the plaintiff's damages by

50%. In the second case, the plaintiff was playing a daredevil game in
which he tried to run as close to oncoming cars as possible, and the

defendant's eyes were momentarily averted by a firecracker exploding

near her car. Application of cause-comparison would mandate that the

plaintiff's award be reduced by only 50% on the logic that each was
an equal cause of the injury. Fault comparison should produce drastic

differences in these results. ^^

-°See supra note 49 and accompanying text.

-'This discussion refers to cause-comparison and not to proximate cause. Similar

concerns are involved when juries are permitted to make determinations of proximate
cause. See infra notes 68-75 and accompanying text.

"In the first example, the defendant's fault greatly exceeds that of the plaintiff.

Plaintiff's damages, if reduced at all, would be diminished by much less than the 50^o
necessary if cause-comparison is utilized. Similarly, the defendant's fault in the second



696 INDIANA LAW REVIEW [Vol. 17:687

Realistically, a jury might manipulate cause-comparison and not reach

the same verdict in both cases, even though theoretically strict cause-

comparison would mandate otherwise. The comparative fault system

should not rely upon the jury's distortion of the object of the comparison,

whatever it might be, to avoid the problems it poses for assigning

accountability. Starkly drawn differences between hypothetical cases such

as those just posed may not raise much concern. A cause-comparison
approach poses the very real danger, however, that a party whose fault

is minimal will bear a disproportionate share of liability because his

proportion of the cause is great.

The Act's suggested jury instructions state:

The jury shall determine the percentage of fault of the

claimant, of the defendant, and of any person who is a nonparty.
The percentage of fault figures of parties to the action may
total less than one hundred percent (100%) if the jury finds

that fault contributing to cause the claimant's loss has also come

from a nonparty or nonparties."

This jury instruction is insufficient to prevent the jury from applying

cause-comparison, and in fact even suggests that it adopt cause-com-

parison. The instruction should be revised to remove the reinforcement

for cause-comparison.^'^ The Act already provides that "legal requirements

of causal relation apply to: (1) fault as the basis for Hability; and (2)
contributory fault. "^^ If the trial court carefully adhered to this ad-

monition and the phrase "fault contributing to cause" were removed

from the instruction there would then be no real reason to believe that

the jury would be permitted to assign "fault" where no cause-and-effect

relationship existed between the alleged culpable behavior and the injury.

The point to be made here is not that the jury should not be instructed
on matters of causation. It is, rather, that matters of causation should

be carefully kept separated from the comparison of "fault." The Act

permits modification of the statutory instructions by agreement of the

parties. Absent legislative revision, counsel should submit instructions

which carefully separate the issues of causal contribution and comparison

of fault, and which emphasize the proper task of fault apportionment.

For now, attorneys and courts must bear the responsibility for instructing

juries to base their calculations on fault comparison to insure that juries

are measuring the parties' fault, not their causation.

example is insignificant. If fault-comparison is employed, the plaintiff's award would be

zero.

"Ind. Code § 34-4-33-5(a) (emphasis added).
'^The 1984 amendments improved the suggested jury instructions by striking the

phrase "proximately contributing to cause" in another part of those instructions, but the

idea of contribution to cause remains in the portion quoted in the text of note 53, supra.

'nuD. Code § 34-4-33-l(b).



1984] FIRST GLANCE 697

D. Sections 3 and 4: Statement of the Comparative Fault Principle

I. Form and Substance: Some Problems. —Sections three and four/''
the Act's main substantive clauses, are excellent examples of patchwork

drafting and its resultant problems. Section three was essentially borrowed

from the Uniform Act and, consequently, contains well-considered lan-

guage which details the comparative fault principle." Section four ex-

presses Indiana's modification of that principle. ^^ Had the Indiana
legislature adopted the commissioners' suggestions for a model modified

system, ^^ this section would be clear and concise. Under the commis-

sioners' system, sections three and four would have been combined into

a direct statement of modified comparative fault. ^° The Indiana Act's

technique of stating the operative concept of its formula as an exception

to a principle which it does not fully embrace invites misunderstanding

and interpretative arguments.

A troublesome aspect of section four is that the claimant's recovery
is barred if his "fault is greater than the fault of all persons who
proximately contributed to the claimant's damages. "^^ The commissioners

proposed a bar if the claimant's fault is "greater than the combined

fault of all other parties to the claim. "^^ Whereas the commissioners'

version clearly requires that the fault of other actors be considered a

single quantity, the Indiana Act suggests, by omitting the word "com-

bined," that the claimant is barred if each actor's fault is not greater

than the claimant's fault. ^^ However, the Indiana jury instructions do

require a comparison of the claimant's fault to the ''total fault involved

in the incident."^"* In light of these instructions, the legislature probably

intended that the claimant's fault would be measured against the total

or combined fault of all other actors. The substantive sections, however,

should not rely upon later nonsubstantive sections for clarification,

especially when the latter sections are subject to modification by agree-
ment of the parties.

Section four is also needlessly complex. The section divides actions

'^ND. Code §§ 34-4-33-3, -4.

"M § 34-4-33-3.
''Id. § 34-4-33-4.

^^Uniform Act, supra, note 7, § 1, at 36, 38.

^'Ind. Code § 34-4-33-4(a) (emphasis added).

^^Uniform Act, supra, note 7, § 1(a), at 36 (emphasis added).

^^If this interpretation is accepted, then the claimant's recovery will be barred in

some cases where the claimant would recover under the commissioners' "combined fault"

language. For example, where the claimant's fault is 40% and the fault of three tortfeasors
is 20% each, the claimant's 40% is greater than the fault of each tortfeasor. Consequently,
the claimant's recovery would be barred under this interpretation. However, the claimant's

40% fault is less than the combined fault of the three tortfeasors. Thus, under the
commissioners' version, the claimant would clearly be entitled to apportioned recovery.

'^IND. Code § 34-4-33-5(a)(2), (b)(2) (emphasis added).



69S INDIANA LAW REVIEW [Vol. 17:687

based on fault into three classes: those brought against (1) a single

defendant, (2) two or more defendants who may be treated as a single
party, and (3) two or more defendants.^' These three classes seem to

cover all imaginable actions based on fault, yet the section separates

the third class from the first two and repeats the modification of the

apportionment principle. The same division and repetition appears in

the suggested jury instructions. Since no intention to treat the various

classes of defendants differently is apparent from the language of section

four or the jury instructions,^^ this section would have been more clear

and concise if it had simply stated that the modified apportionment

principle applied to all actions based on fault. ^^

2. Problems of "Proximate Contribution".—Both subsections of
section four contain the phrase, "claimant is barred from recovery if

his contributory fault is greater than the fault of all persons whose fault

proximately contributed to the claimant's damages. "^^ The suggested jury

instructions, however, nowhere mention ''proximate contribution," and

in fact a phrase containing those words was deleted from those instruc-

tions in the 1984 amendments to the Act.^^ This discrepancy suggests

that the proximity of contribution is to be determined by the court and

not by the jury. Section one's admonition that "[i]n an action brought

under this chapter legal requirements of causal relation apply to: (1)

fault as the basis for liability; and (2) contributory fault"^° bolsters this

''Id. § 34-4-33-4.

^The original Act contained a class of defendants called "primary" defendants, who
were defendants whose liability was "based upon [their] own alleged act, omission, or
product and not based upon [their] relationship to another defendant." Act of Apr. 21,

1983, Pub. L. No. 317-1983, Sec. 1, § 2(a), 1983 Ind. Acts 1930. The definition and

triparite classification of section four created doubts about whether a lawsuit against only

nonprimary defendants (as in the case of suit against an employer on a theory of vicarious

liability) was covered by the apportionment principle. The 1984 amendments struck all

references to "primary" defendants, Acts of Mar. 5, 1984, Pub. L. No. 174-1984, Sec.

1-3, §§ 2, 4, 5, 1984 Ind. Acts 1468, 1468-69, and refnoved the cloud, but the 103rd

General Assembly missed the opportunity to concisely and precisely state the modification

principle.

'' A better approach would have been to actively impose the principle upon cases
for which it is intended to operate. For example:

In actions governed by this chapter, if the claimant's fault is not greater than

the combined fault of all other persons who contributed to claimant's injury,
the judge or jury shall diminish the amount awarded as compensatory damages

to the claimant in proportion to claimant's fault.

This suggested arrangement also borrows from the Uniform Act, but affirmatively states

the principle in a way that acts upon the people charged with the responsibility for carrying

it out. See Kirk, Elements of Legal Drafting, 1977 A.B.A. Comm. Legal Drafting; Int'l
Seminar & Workshop on the Teaching of Legal Drafting 225, 240.

*4nd. Code § 34-4-33-4(a), (b) (emphasis added).
''''Compare Act of Apr. 21, 1983, Pub. L. No. 317-1983, Sec. 1, § 5(a)(1), (b)(1),

1983 Ind. Acts 1930, 1931-32, with Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 3,

§ 5(a)(1), (b)(1), 1984 Ind. Acts 1468, 1469-70 codified at (Ind. Code § 34-4-33-5(a)(l),
(b)(1) (Supp. 1984)).

^'^IND. Code § 34-4-33-l(b) (emphasis added).



1984] FIRST (iLANCE 699

suggestion if the phrase means anything more than that anyone asserting

the fault of another party must estabhsh a cause-in-fact connection

between the fault asserted and the alleged injury. If the Act requires

that the court make some determination of proximate causation prior

to submitting the case to the jury, the jury should not be permitted to

apportion the "fault" of those actors whose fault did not proximately

contribute to (proximately cause) the plaintiff's injury.

Complications can quickly set in if the court and counsel do not

carefully separate matters of proximity of contribution from the case,

and determine those issues prior to the jury's apportionment of "fault."

To illustrate, assume a suit brought by P against actors A, B, and C
If Cs conduct, even though substandard and a causal factor in P's
injuries, does not satisfy the requirement of "proximate contribution,"

that conduct should not be considered by the jury in its computation

of "fault." If the court does not carefully instruct the jury to disregard

Cs conduct in its deliberations, it may very well include that conduct
in its apportionment, since the suggested instructions do not alert the

jury to the issue of proximity. ^' If C had been dismissed from the case
and the jury had "reinstated" her for purposes of its calculations,

however, that fact should be quickly ascertained and corrective measures

taken under section nine of the Act.^^

If the court postpones a ruling on proximate contribution, permitting

the jury to apportion "fault" taking Cs conduct into account, some
difficulties will arise in later removing C from the case. For example,
assume that the jury returned findings that P was 33% at "fault," A
was 12%, B was 15%, and C was 40%. Under these findings, P's
" 'fault' is not greater than fifty percent ... of the total fault involved

in the incident. "^^ When it is determined that Cs "fault" did not
proximately contribute to P's injuries, then P's "fault" does exceed

50% of the "fault of all persons whose fault proximately contributed"
to the injury. All of the "proximately contributing fault" before the

court is represented by P's, ^'s and B's conduct. If the relative pro-

portions of fault found by the jury are any guide, then an extrapolation

can be made to determine the percentages of fault of each of those
three parties. To do that, all of the contributing conduct, whether
"proximate" or not, is first taken into account and converted to the

^'Indeed, the instructions require the jury to take the "fauh" of a "nonparty" into

account. In a case where C has not been sued or has been dismissed, her "fault" may
slip back into the case through the "nonparty" language of the instructions. For a dis-

cussion of the nonparty defense, see infra text at notes 200-34.

^^Ind. Code § 34-4-33-9. This section is discussed infra at notes 83-85 and accom-
panying text.

"The quoted language is taken from the proposed jury instructions, Ind. Code §
34-4-33-5(a)(2), (b)(2), discussed infra at notes 77-151 and accompanying text.



700 INDIANA LAW REVIEW [Vol. 17:687

numeric value of 100. Then, removing Cs 40/100 "nonproximately
contributing" conduct leaves 60/100 remaining as the "proximately con-

tributing" conduct. Ratios produce the conclusion that P's "fault" is

33/60 or 55%, A's is 12/60 or 20%, and B's is 15/60 or 25%. This
conclusion means that P's action should be barred for having exceeded

50% of the fault proximately contributing to the injury. Whether the
jury would have reached that conclusion on its own had it been instructed
to disregard Cs conduct is a matter of extreme speculation.

This analysis suggests yet another reason for avoiding the deter-

mination of proportions of fault as if they are proportions of causal

contribution. In the hypothetical case just related, all of the parties

contributed to the events leading to the plaintiff's injury. Each is con-

nected in the cause-and-effect relationship necessary to establish an ele-

ment of the plaintiff's cause of action. Yet, because of the operation

of the particular proximate cause formula applicable to the circum-

stances,^^ Cs conduct is not part of the "total fault" from which the
ultimate proportions are to be drawn. To prevent confusion, the jury's
consideration of the case must be carefully controlled to assure that it

understands why Cs acts are to be removed from the apportionment
decision. The suggested jury instructions of the Act appear to be directed

toward ordinary, uncomplicated cases, and should not be routinely adopted

for multiple party cases complicated with issues of "proximate contri-

bution."

Assuming that the legislature did not intend that the term "proximate
contribution" have some legally significant effect or that the meaning

of the phrase be equivalent to "proximate cause" does not ehminate

the problems just discussed. Conscientious counsel will likely notice and

use the difference in phrasing between the substantive clauses of section

four and the suggested jury instructions when the interests of their clients
turn upon competing interpretations. The controversy raised by differ-

ences in interpretation may also lead to confusion in jury argument and
deliberation. If the phrase was not intended to carry legal significance,

it should be deleted. After all, the word "proximate" is freighted with

quite enough confusion and controversy in the context of proximate

cause without importing it into the realm of comparative fault. ^^

\See generally, L. Green, Rationale of Proximate Cause (1927); W. Prosser,

Handbook of the Law of Torts 236 (4th ed. 1971); 2 F. Harper & F. James, The
Law of Torts § 20.1 (1956).

^'See the Preface to L. Green, supra note 74. The chart he attempted to draw for

correcting the judicial course, in the twenty-nine years intervening between the publication

of his book and the Harper and James treatise, and the forty-four years between his

statements and Prosser's fourth edition, had apparently not successfully steered the judicial

mind completely free of dangerous shoals.



1 984] FIRST GLANCE 701

E. Sections 5, 6, and 9: Controlling the Jury

1. Introduction.—Apportionment of "fault" and the consequent
allocation of recoverable damages is a complex task dependent upon

explicit findings of percentages, careful determination of "unadjusted"

damages, and accurate computations in applying the percentages to the

"unadjusted" damages. A much greater potential for jury confusion
and error exists in a comparative fault system than in the traditional

system where the liability issue is answered yes or no, and damages

remain "unadjusted." Sections five and six of the Act attempt to reduce

potential confusion by setting out detailed instructions and requirements

concerning the verdict form. Section nine spells out court instructions

in the event of jury computational errors. These sections comprise the

procedural implementation for the substantive provisions of sections three

and four.

Because no single, ideal procedure for administering a system of

apportionment exists, problems may arise from these pronounced pro-
cedures. For example, a series of decisional and computational steps

satisfactory in one fact situation may be a source of difficulty with
different facts and a different jury. Determining the percentages of

"fault" and the ultimate damages may be an easy task in a simple case
where liability is not hotly contested. But a case which involves multiple

parties, complex damages issues, and vigorously refuted fault allegations

may require a wholly different means of organizing the case for the
jury's consideration. The ensuing sections will discuss potential problems
with the legislature's detailed jury controls.

Because sections five and six control the jury by shaping the format

of its decisions, they may be viewed as having a substantive effect. For
example, the instructions may be interpreted as an abolition of joint
and several liability. The subsequent discussion will consider first the
abolition interpretation and the arguments supporting that view, based

upon the premise that separate verdicts against multiple defendants mean
severaP^ but not joint liability. Next, the discussion will address an

interpretation favoring the retention of joint and several liability, based

upon the premise that the provisions of the Act do not purport to affect

joint liability. Finally, even if the jury instructions are construed as

intending to abolish joint and several liability, the doubtful validity of

those provisions is discussed.

2. The Alternative Instructions.—The Act prescribes a set of in-
structions for single defendant cases (or multiple defendants who may
be treated as a single party), ^^ and another set for all other multiple

defendant cases. ^^ The requirements of the two sets are virtually the

'''See Black's Law Dictionary 1232 (5th ed. 1979).
"IND. Code § 34-4-33-5(a).
'^Id. at § 34-4-33-5(b).



702 INDfANA LAW REVIEW [Vol. 17:687

same/"* In each case the jury is instructed to perform the following tasks

in the order presented:

(1) determine the percentage of fault for each party and nonparty;

(2) return a verdict for defendant(s) if plaintiff's fault is found

to be greater than 50^o;

(3) determine the total damages disregarding contributory fault

if plaintiff's fault does not exceed 50%;

(4) enter a verdict for the amount(s) obtained by multiplying

the percentage(s) of fault of the defendant(s) by the damages

figure obtained in step (3).^°

A potential problem Hes in the required order of the jury's findings.
First computing the percentages of the parties' "fault" is sensible when
the plaintiff's contributory fault is strong and little or no rebuttal is

offered by the plaintiff because needless expenditure of time and effort

in computing damages will be avoided if the plaintiff's "fault" is found

to be greater than 50%. The number of such cases which will come to
litigation, however, is not likely to be large. The majority of cases will

very likely be ones in which fault is a close and vigorously contested

issue. In such cases, counsel should consider whether the jury might

better make a computation of damages with their minds uncluttered by
thoughts of who is at fault and in what proportions.^' Juries are supposed
to understand that they are to make independent findings on the issues
of fault and damages, but some juries in trials involving difficult as-
sessments of fault may be unable to fully disregard a party's culpability
when assessing damages.

Of course, juries' deliberations on damages are not always going to
be tainted by prior determinations of fault. The problem is the legis-

'''There are minor differences in the number of nouns, but the two sets of instructions

are in large part redundant. The main difference lies in the language of section 5(b)(4),

which requires a jury to:

enter a verdict against each such defendant (and such other defendants as are

liable with the defendant by reason of their relationship to such defendant) in

the amount of the product of the multiplication of each defendant's percentage

of fault times the amount of damages as determined under subdivision (3).
Section 5(a), which pertains to single defendants and multiple defendants treated as a

single party, is written in the singular. The drafter apparently wanted to avoid confusion

about how the verdicts were to be computed in a multiple defendant case (which might

include some defendants who would be treated as a single party), and set out separate
and complete sets of instructions. The significance of the language employed in section

5(b) to the joint and several liability issues is discussed infra at notes 90-91, 104-08 and

accompanying text.

^'Ind. Code § 34-4-33-5(a), (b).
"The Indiana Act's suggested instructions essentially parrot the language of the

Uniform Act, except that the Uniform Act's version states general guidelines for the court

rather than instructions for the jury and puts the finding of damages first in the order.

Uniform Act, supra note 7, § 2, at 39.



1984] FIRST GLANCE 703

lature's presumption that those deliberations will never be tainted. There-

fore, before acquiescing in the use of the Act's proposed instructions,

counsel should consider carefully whether the tailored instructions will

keep the fault and damage issues separate. If a case requires varying

the order of determinations, the jury should be admonished not to depart

from the instructed order. The findings on damages should be returned

to the court as soon as made. Then the jury should deliberate on fault.

This sequence avoids possible adjustments by the jury once they see the

actual dollar amounts for which each party is responsible.

3. Errors in Computation.—The fourth subsection of the instruc-
tions directs the jury to render its verdict as the product of the mul-

tipHcation of the defendants' fault percentages and the "unadjusted"

damages figure. ^^ Section nine of the Act prescribes procedures for when

errors are detected in the jury's calculations.^^ The jury will be informed

that there is an error, the error(s) will be pointed out, and the jury

will be returned to the jury room "to correct the inconsistencies."-^

Under section nine, the jury is not bound by the findings in the erroneous

verdict when correcting its error. ^^

4. Joint and Several Liability: The Opposing Interpretations of the

Multiple Defendant Jury Instructions.—One of the Act's most contro-
versial features is its purported effect of abolishing joint and several

liability. Although the Act does not explicitly address joint and several

liability, the jury instructions relating to multiple defendants may im-
plicitly abrogate the common law doctrine. ^^ The practical effect of the
jury instructions, which require individual verdicts, may be that the
plaintiff will be unable to reach beyond a verdict amount to hold a

defendant responsible for more than her share of assessed "fault." This

effect was supposedly one of the "bargaining chips" given up by the

proponents in the political compromise necessary to obtain passage of

the Act.^'

In the political arena, give-and-take is an inevitable aspect of the

^^iND. Code § 34-4-33-5(a)(4), (b)(4).
"M § 34-4-33-9.
^'^Id. By including section nine in the 1984 amendments, the legislature avoided some

sticky issues that would have arisen when a jury returned a verdict amount that did not

agree with the percentage and the "unadjusted" damages figure. For example, the issue

of whether the percentage figures or the final verdict amount should control would surely

arise. A question of who would correct and how the correction would be made would
also arise.

^^IND. Code § 34-4-33-9.

•"^M § 34-4-33-5(b).

''^The principal drafter of Senate Bill 287, the Comparative Fault Act, Mr. Edgar

Bayliff, has stated that giving up joint and several liability was "what we understood

was being achieved at the time ... if we didn't agree to this we were not going to get
the Act." E. Bayliff, remarks at the Indiana Trial Lawyers Association, Seminar on

Comparative Fault: "Practicing with Comparative Fault," (Sept. 16, 1983) [hereinafter cited

as Remarks of Mr. Bayliff]-



704 INDIANA LAW REVIEW [Vol. 17:687

legislative process. Legislators may rationally compromise on a point of
contention on the ground that the number of people negatively affected

by the "given" is much smaller than the number benefited by the
"taken. "^^^ However, if the Act is ultimately construed as abrogating

common law joint and several liability, a significant negative impact
upon the right of recovery of some injured parties will result. ^^ That

effect is sufficient reason to examine carefully in the judicial arena the

purported changes and to discover whether sufficient legal justification

exists. The "pros" and "cons" of opposing interpretations of the jury

instructions will be examined in the following sections.

a. The interpretation abolishing joint and several liability.—Section
5(b) of the Act suggests that in multiple defendant cases the court will

instruct the jury to "enter a verdict against each such defendant . . .

in the amount of the product of the multiplication of each defendant's

percentage of fault times the amount of damages as determined under

subdivision (3)."^^° Since the rule of joint and several liability permits

a plaintiff, at his option, to seek recovery for the total amount of

damages against any one or all joint tortfeasors, an immediate problem

arises in a joint tortfeasor case under the Act. If the plaintiff obtains

a damages verdict of $10,000, for example, and each of the two de-

fendants' "fault" is assessed at 50^o, the plaintiff has verdicts against

each limited to $5,000. Any attempt by the plaintiff to obtain satisfaction
for more than $5,000 against a single defendant would be attacked by

that defendant as an attempt to reach beyond the plaintiff's verdict.

Consequently, the practical effect of the Act is said to be to banish the

joint portion of joint and several liability.

Arguments in support of this interpretation begin with the proposition

that the abolition effect is certainly consistent with the general principle

of the Act, which assures that each defendant's liability will be appor-

tioned to that defendant's culpability as determined by the trier of fact.

Since the judgment against the two defendants is, under this argument,

limited by the sum-certain verdicts, either defendant will be able to

withstand the plaintiff's attempts to hold one of them entirely liable by

asserting that her judgment debt does not cover the entire $10,000. Thus,

the equitable principle of fairness, so heavily invoked in favor of the

plaintiffs' interests as a justification for the Act, is made applicable to
the defendants' interests.

Proponents of the abolition position might also employ a "greater

good for the greater number" balancing approach. The proponents' first
contention would be that those plaintiffs deprived of the options provided

by the old rule represent a small proportion of all those involved in

""See id.

"''See infra note 148 and accompanying text.

•^'Ind. Code § 34-4-33-5(b).



1984] FIRST Gl.ANCE 705

tort litigation. The second contention would be that the greater benefit

of extending the right of at least partial recovery to many whose claims
were once totally barred outweighs the relatively slight detriment to the

plaintiffs' interest caused by the loss of joint liability. Similarly, since

the Act does not require every possible tortfeasor to be brought dragnet-

style into a lawsuit by the plaintiff, the plaintiff's burden in the process

of apportioning fault among all of those truly at fault is not as great
as it might have been. The Act requires that the trier of fact apportion

the "fault" of persons not made party to the action,*^' so the plaintiff

is not compelled to bring suit against everyone. An incentive to name
all persons at fault exists because any attribution of "fault" to a nonparty

effectively reduces the plaintiff's recovery in that proportion, but the

plaintiff is afforded the option of leaving someone out of the lawsuit

if he chooses.

Furthermore, precedent for the abolition of joint and several liability

exists in some states which have adopted comparative fauk. Five states,

for example, have legislatively abolished the doctrine outright. '^^ Three

others have abolished it for cases where the plaintiff's fault exceeds the

defendants',^^ and one has judicially abolished it when the plaintiff is
also at fault.

9^

b. The interpretation retaining joint and several liability. —The best
evidence pertaining to the issue of retention or abolition of joint and

several liability is the language of the Act itself. Since the Act does not

expHcitly address the subject, the^abolition argument is wholly dependent

upon a "necessary implication'"^- contained in that language. Arguments
for the retention of the common law rule would, therefore, include
assertions challenging the implication's necessity as well as the implication

itself. ^^ Further arguments might accept the "necessary implication"

interpretation at face value, but challenge the legal and institutional

vaHdity of the abolition interpretation.*^^

(1) The substantive provisions.—The starting point for the retention
position is that the all-important substantive provisions of the Act,

'''Id. § 34-4-33-5(a)(l), (b)(1). There may be a problem with this segment of the in-
structions in the event that the defendant does not assert a "nonparty defense." See infra

text accompanying note 213.

^^Kan. Stat. Ann. § 60-258a(d) (Supp. 1984); La. Civ. Code Ann. art. 2323 (West
Supp. 1984); N.H. Rev. Stat. Ann. § 507:7a (1983); Ohio Rev. Code Ann. § 2315.19(a)(2)
(Page 1981); Vt. Stat. Ann tit. 12, § 1036 (Supp. 1983).

"Nev. Rev. Stat. § 41.141(3) (1979); Or. Rev. Stat. § 18.485 (1977); Tex. Rev.

Civ. Stat. Ann. art. 2212a (Vernon Supp. 1983).
"^Berry v. Empire Indem. Ins. Co., 634 P. 2d 718 (Okla. 1981); Boyles v. Oklahoma

Natural Gas Co., 619 P. 2d 613 (Okla. 1980); Laubach v. Morgan, 588 P. 2d 1071 (Okla.

1978).

^^Remarks of Mr. Bayliff, supra note 87.

''''See infra notes 99-108, 123-36 and accompanying text.

"'''See infra notes 109-22, 138-47 and accompanying text.



706 INDIANA LAW REVIEW [Vol. 17:687

sections three and four, affect only the plaintiff's right of recovery of
damages and not the defendants' liability. As comparison with the
legislative enactments of other states illustrates, the Indiana Act's sub-

stantive provisions invoke the comparative fault principle only by reducing

the amount of, or barring, damages in proportion to the plaintiff's

fault, whereas all of the other states' schemes specifically address the

extent of the defendants' liability. '^^^ A close look at those statutes will
show that the substantive declarations are stated in specific terms which

tie the reduction of damages in multiple defendants cases directly to the

defendants' liability.

The Kansas statute provides:

Where the comparative negligence of the parties in any action
is an issue and recovery is allowed against more than one party,

each such party shall be liable for that portion of the total

dollar amount awarded as damages to any claimant in the pro-
portion that the amount of his causal negligence bears to the
amount of the causal negligence attributed to all parties against
whom such recovery is allowed. ^^

Louisiana's statute provides:

He who causes another person to do an unlawful act, or
assists or encourages in the commission of it, is answerable, in

solido, with that person, for the damage caused by such act.
Persons whose concurring fault has caused injury, death or

loss to another are also answerable, in solido; provided, however,

when the amount of recovery has been reduced in accordance

with the preceding article, a judgment debtor shall not be liable

for more than the degree of his fault to a judgment creditor

to whom a greater degree of negligence has been attributed,
reserving to all parties their respective rights of indemnity and

contribution.'^

The New Hampshire provision states:

. . . provided that where recovery is allowed against more than

one defendant, each such defendant shall be liable for that

proportion of the total dollar amount awarded as damages in
the ratio of the amount of his causal negligence to the amount

of causal negligence attributed to all defendants against whom
recovery is allowed. '°'

The Ohio Statute's language is:

'""See infra notes 99-101 and accompanying text.

''^Kan. Stat. Ann. § 60-258a(d) (Supp. 1984) (emphasis added).

"^'La. Civ. Code Ann. art. 2324 (West Supp. 1984) (emphasis added).

""N.H. Rev. Stat. Ann. § 507:7a (1983) (emphasis added). The Vermont statute

uses language almost identical to the emphasized portion of the New Hampshire provisions



1984] FIRST GLANCE 707

If recovery for damages determined to be directly and prox-

imately caused by the negligence of more than one person is

allowed under division (A)(1) of this section, each person against

whom recovery is allowed is liable to the person bringing the
action for a portion of the total damages allowed under that

division. The portion of damages for which each person is liable

is calculated by multiplying the total damages allowed by a

fraction in which the numerator is the person's percentage of

negligence, which percentage is determined pursuant to division

(B) of this section, and the denominator is the total of the

percentages of negligence, which percentages are determined pur-

suant to division (B) of this section to be attributable to all

persons from whom recovery is allowed. Any percentage of
negligence attributable to the person bringing the action shall

not be included in the total of percentages of negligence that

is the denominator in the fraction. '^^

The greater specificity of these statutes over the Indiana Act is

immediately apparent. States intending to affect the rule of joint and

several liability have employed specific terms with direct substantive

impact upon the liability of those subject to the common law rule,
whereas the Indiana Act is completely silent on the matter. The Indiana

Act operates only to diminish the plaintiff's compensation in proportion

to his own contributory fault. Therefore, the abolition argument's es-
sential "necessary implication" finds no support in the substantive por-

tions of the Indiana Act. Instead, the intent to abrogate the common
law must stand or fall upon the effect of the suggested iury instructions. '°-

The Indiana Act's suggested jury instructions are not substantive

provisions. They merely repeat the principles contained in sections three

and four, and outHne a procedure for implementing those principles.

In effect, the instructions translate the substance of the Act for the

jury's benefit. In fact, the translation reflects the same operation of the

substantive provisions, directing the jury to reduce the plaintiff's com-

pensation in proportion to his fault. Indeed, the instructions direct the

jury to perform its computations by references to the defendants' "fault,"

but such directions should be viewed as merely an expedient way to
perform rather complex calculations. '°^ If the function of the suggested

jury instructions is viewed simply as assuring ease in computations and

quoted above. Vt. Stat. Ann. tit. 12, § 1036 (Supp. 1983). The statutes limiting joint

and several liability to situations where the plaintiff's fault is less than the defendant's

fault are similarly specific. See Or. Rev. Stat. § 18.485 (1977); Tex. Rev. Civ. Stat.

art. 2212a (Vernon Supp. 1983).

'"^Ohio Rev. Code Ann. § 2315.19(9)(2) (Page 1981) (emphasis added).
""5ee supra notes 86, 90 and accompanying text.

'"^It is easier, after all, for the jury to reduce the "unadjusted" damages figure by

performing one multiplication function than it would be to first multiply the "unadjusted"

damages figure by the plaintiff's percentage of "fault," then subtract the product of that



708 INDIANA LAW REVIEW [Vol. 17:687

reducing occasion for error, the strength of an imphed aboHtion of joint

and several Uabihty weakens.

(2) Assumption of the requirement of seriatim verdicts and separate
judgments.—The abohtion argument asserts that a plaintiff who seeks
to collect more than a verdict amount against a joint tortfeasor exceeds
the legal authority residing in him to execute on the judgment. The
retention argument first counters by pointing out two assumptions un-
derlying that assertion: (1) that the Act requires seriatim verdicts for

each party-defendant and (2) that separate judgments would be entered

on each verdict. Neither assumption is compelled by the language of
the Act. Additionally, even if the Act were taken to compel such results,
the validity of such requirements is open to serious challenge. '^^

First, the language of the proposed instruction does not compel the

rendition of seriatim verdicts. Indeed, one reading of the lead sentence

to the proposed instructions for multiple defendant cases would compel

but a single verdict against all defendants with separate parts relating

to proportionate shares of damages for each defendant: 'Tn an action

based on fault that is brought against two (2) or more defendants, and

that is tried to a jury, the court, unless all parties agree otherwise, shall

instruct the jury to determine its verdict in the following manner

. . .
."'^^ The singular term "verdict" in the lead sentence denotes a

single verdict covering the case against all defendants.

On the other hand, the fourth subdivision of the proposed instructions
requires the jury to "enter a verdict against each such defendant. "'°^

The singular usage of "verdict" and the term "each" in the connecting

phrase in this subdivision connotes a number of individual verdicts equal

to the number of defendants. However, an equally valid construction

of the phrase would be that each defendant, and her proportionate share

of damages, shall be named in a verdict. The fourth subdivision's phrase

is syntactically ambiguous, but this ambiguity can be resolved by reading

the subdivision against the background of the lead sentence quoted above.

The construction given the subdivision should be one that agrees with

the lead sentence's use of the singular "verdict." If the legislature

intended to compel seriatim verdicts, it easily could have used the plural

"verdicts" in the lead sentence and clarified the fourth subdivision by

inserting the term "separate" before the term "verdict. "'°^ In this light,

multiplication from the "unadjusted" dannages figure and then enter the remainder as

the verdict.

^"^See infra notes 109-22, 138-47 and accompanying text.

"'^Ind. Code § 34-4-33-5(b) (emphasis added).
''"Id. § 34-4-33-5(b)(4).

'"^Section six of the Act also uses the singular "verdict," suggesting that the final

verdict of the jury is to be expressed as a single damages figure, representing the sum
of the figures derived for each defendant. Because the jury instructions are detailed, one

might suppose the legislature would have required the expression of this "bottom line"

figure—if it had thought about it.



1984] FIRST CHANCE 709

the single verdict interpretation finds more support in the larger context

of the Act's provisions than does the seriatim verdict interpretation.

Assuming arguendo that the Act requires seriatim verdicts, a con-

clusion that separate judgments should be entered for each separate

verdict does not necessarily follow. In fact, some of the Indiana Rules

of Trial Procedure strongly indicate a contrary conclusion. Rule 58, for

example, requires that "upon a general verdict of a jury, or upon a
decision announced, the court shall promptly prepare and sign the judg-

ment, and the clerk shall thereupon enter it."'°^ The Rule is expressly

made "[sjubject to the provisions of 54(B), ""° which in turn deals with
judgments involving multiple claims or parties.'" Rule 54(B) contemplates

situations calling for the expedition of multiple claims or multiple party

lawsuits. The rule permits separate judgments upon less than all of the

claims of parties when the subjects of the judgments are severable from
the claims or parties which have not reached the judgment stage. "^ It

confers discretion upon the trial court to enter such separate judgments,
but "only upon an express determination that there is no just reason
for delay and upon an express direction for the entry of judgment . . . .""^

Separate judgments are clearly not mandated and the circumstances invok-

ing the exercise of the rule's discretionary power are not suggested simply

by the presentation of seriatim verdicts to the court in a comparative fault

case. Rule 54(B) is designed to prevent delays with respect to severable mat-

ters in a multiple claim or multiple party case""^ and the ordinary multiple

'<»Ind. r. Tr. p. 58.

'''Id. 54(B) reads:

(B) Judgment upon multiple claims or involving multiple parties. When
more than one [1] claim for relief is presented in an action, whether as a claim,

counterclaim, cross-claim, or third-party claim, or when multiple parties are

involved the court may direct the entry of a final judgment as to one or more
but fewer than all of the claims or parties only upon an express determination

that there is no just reason for delay and upon an express direction for the

entry of judgment. In the absence of such determination and direction, any

order or other form of decision, however designated, which adjudicates fewer

than all the claims or the rights and liabilities of fewer than all the parties shall

not terminate the action as to any of the claims or parties, and the order or

other form of decision is subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights and liabilities of all the

parties. A judgment as to one or more but fewer than all of the claims or
parties is final when the court in writing expressly determines that there is no

just reason for delay, and in writing expressly directs entry of judgment, and

an appeal may be taken by the judgment; but in other cases a judgment, decision
or order as to less than all the claims and parties is not final.

Id.

"'Id.

"'Id.

See, 10 C. Wright, A. Miller, M. Kane, Federal Practice and Procedure §
114



710 INDIANA LAW REVIEW [Vol. 17:687

party case calls for a single judgment. Moreover, Rule 54(E) provides that

judgments

against two [2] or more persons or upon two [2] or more claims
shall be deemed joint and several for purposes of:

(1) permitting enforcement proceedings jointly or separately

against different parties or jointly or separately against their

property; or

(2) permitting one or more parties to challenge the judgment

(by appeal, motion and the like) as against one or more
parties as to one or more claims or parts of claims."^

It is the judgment, not the verdict, which creates the defendant's

debt to the plaintiff and extinguishes the plaintiff's claim. ^'^ If the analysis

that seriatim verdicts rendered by the jury would comprise a single
judgment is correct, then the plaintiff would execute on the judgment

which encompasses the entire findings on damages, and the plaintiff

would not necessarily be prohibited from seeking satisfaction of the

entire judgment from a joint tortfeasor.

In addition, the verdict form prescribed by the Act is defined gen-

erally, and requires only "the disclosure of: (1) the percentage of fault

charged against each party; and (2) the calculations made by the jury

to arrive at their final verdict.""^ It does not specify recitals linking

specific damage figures to specific defendants. A verdict form similar
to the example set out below"^ would satisfy the Act's requirements,

respond to the proposed instructions which assist the jury in making

2654 (1983) (discussing Federal Rule 54, after which the Indiana Rule is patterned). See

also, 6 J. Moore, Moore's Federal Practice 154.04 (1983).
"^IND. R. Tr. p. 54(E).

'"•See Restatement (Second) of Judgments §§ 18, 24 (1982).

"^Ind. Code § 34-4-33-6.
118

VERDICT
We, the jury find:

1

.

that Plaintiff's percentage of fault equals •%

2. that Defendant One's percentage of fault equals %
3. that Defendant Two's percentage of fault equals %
4. that nonparty one's percentage of fault equals %
5. that the total fault of all of the parties above equals %
6. that Plaintiff's total amount of damages, disregarding

contributory fault equals $

7. that Defendant One's % of fault x (times) Plain-
tiff's total damages in #6 equals $

8. that Defendant Two's % of fault x (times) Plain-
tiff's total damages in #6 equals $

Therefore, we the jury further find and enter our Verdict

for Plaintiff against Defendant One and Defendant Two
in the amount of (#7 + #8) $



1984] FIRST CHANCE 711

the computations, and resolve the issue of whether one or multiple

judgments should be entered.

Of course, the argument for abolishing joint and several liability is
not wholly dependent upon seriatim verdicts and separate judgments. If

the verdict is not simply a general form such as, "the jury finds for

Plaintiff A against Defendants B and C in the amount of X dollars,"
the defendant against whom plaintiff seeks full satisfaction may still
argue against joint and several liability. The defendant against whom
satisfaction of full damages is sought might argue that with respect to

her, the judgment""^ created a debt which is limited by the verdict relating

to her. However, the plaintiff's counterassertions'^^' have enlarged the

issue, showing that the defendant's "practical effect" argument casts a

longer shadow than the mere abrogation of a common law doctrine.
The defendant's position must now sustain practical effects upon the
Rules of Trial Procedure and the law of judgments. These effects are

to be accomplished only by a "necessary implication."'-' Furthermore,

the "necessary implication" must rest upon the thin reed of legislatively

suggested jury instructions.'^^ The defendant's "practical effects" ar-

gument thus begins to buckle under an onerous burden.

(5) Effect of the Act's defendant definitions.—Another argument
in support of retention is based upon other segments of the Act which

lack the specificity needed for an implied abolition of the doctrine. This

argument contemplates the effects of the Act's distinction between two

types of defendants. One type is simply "defendants," the second type
is defendants who "may be treated along with another defendant as
a single party. "'^^ A defendant who may be treated with another as a
single party is one against whom "recovery is sought . . . not based
upon his own alleged act or omission . . . but upon his relationship
to the other defendant. '"^^ The first type of "defendant"is not defined
in the Act, but the inference drawn from the definition of the other

""In addition to section six requirements, a verdict form may include this statement:
"We find for Plaintiff A against Defendant B in the amount of X dollars," and a separate
statemerrt, "we find for Plaintiff A against Defendant C in the amount of Y dollars."
Although the verdict involves separate and limited findings, it is not a special verdict

requiring the court to reach conclusions based upon those findings, and absent Rule 54

circumstances, a court would enter a single judgment.

'^"See supra notes 109-16 and accompanying text.

'^'S^e Remarks of Mr. Bayliff, supra note 87 and accompanying text.

'"The jury instructions, after all, may be modified upon the agreement of all the
parties. While it may be farfetched to suppose that all joint tortfeasors would agree to
jury instructions that remove the language which supports the abolition argument, those

suggestions hardly represent concrete legislative commitment to the abrogation of common
law doctrine and trial rules.

'^^IND. Code § 34-4-33-2(b).



712 INDIANA LAW REVIEW [Vol. 17:687

class would be that they are all other defendants. In parallel language,

these "defendants" are those against whom recovery is sought based
upon their own alleged act or omission and not based upon their
relationship to another defendant.''^ Joint tortfeasors clearly do not fall

into the second class because they are being sued upon their own acts
or omissions, but it is not entirely clear that true joint tortfeasors fit

within the first classification.

The meaning of "joint tortfeasors" and, consequently, the meaning

of "joint and several liability" has slipped into obscurity by virtue of

loose usage and the impact of modern rules of joinder. '^^ Eliminating

that obscurity is beyond the scope of this Article, but some background

may be enlightening. The root of "joint tortfeasorship" is suggested
quite strongly by the term "joint"; the relationship of joint action

between the multiple actors subjects them to liability for the plaintiff's

entire injury. That relationship of joint conduct, plus the operation of

the general principle that a wrongdoer should not escape liability merely

by pointing an accusing finger at another wrongdoer,'^^ formed the basis

for imposing entire liability upon each actor. Under the rule, if multiple

actors join in concert or conspiracy to inflict tortious injury, a plaintiff

can seek to hold them accountable individually or as the injury-inflicting

group. ''^ Modern rules of procedure, which abrogate the common law
restrictions upon joinder, have eroded the boundaries of the original

concepts of joint and several liability. That erosion undoubtedly was

hastened by occasional cases involving indivisible injury caused by mul-

tiple actors. Concurrent, independent conduct consequently is treated in

modern parlance as if fitting the traditional concepts. '^^ Still, the older

principles are inherent in the substance of the tort doctrine, and those

principles illuminate the characteristics of actions that carry the onus

of entire liability for multiple actors. Although the true nature of a

joint tortfeasor action is that multiple acts were related, interconnected,

and jointly aimed at plaintiff's interests, modern notions of expediency
and efficiency, under which the trial of all issues between all parties is

permitted, have obscured that characteristic.

In view of this historic background, the Act's definitions of de-

fendants may not include the true joint tortfeasor. Pursuing this view,
the plaintiff would argue that he is not seeking recovery against multiple

actors simply upon the basis of each actors' own acts or omissions, '^°

'-'The original Act defined "primary" defendant in this way. Act of Apr. 21, 1983,

Pub. L. No. 317-1983, Sec. 1, § 2(a), 1983 Ind. Acts. 1930, 1931.

''''See generally 2 F. Harper & F. James, supra note 74, at § 20.3; W. Prosser,
supra note 74, at 291-92.

'''See Kingston v. Chicago & N.W. Ry. Co., 191 Wis. 610, 211 N.W. 913 (1927).
''"See authorities cited supra note 126.

"''Id.

'^'See supra note 124 and accompanying text.



1 984] FIRST GLANCE 7 ] 3

but upon those acts or omissions as a whole concert or conspiracy of

action. Plaintiff is, therefore, seeking to hold those actors responsible

upon their relationship with each other. If this analysis is valid, then

the Act has not addressed the true joint tortfeasor situation and should

not be found to have incidentally and implicitly abolished the form of

the remedy traditionally recognized in concert or conspiracy of action

cases.

Furthermore, the same rationale may support a similar assertion in
the context of concurrent tortfeasors. In this extension, the relationship

element of the argument is probably a bit strained, but perhaps not to

the breaking point in the case of an indivisible injury produced by

technically-independent but factually-related injurious conduct such as

the classic Summers v. Tice situation.'^'
In light of the dicta in Summers v. Tice^^^ and later authorities

which extended the concurrent tortfeasor analysis to cases in which the

defendants were not acting in true concert, '^^ the principles of joint and

several liability would perhaps be strained if not apphed to a plaintiff's

claim. When, for example, three hunters knowing of each other's presence,

but not hunting as a team, converged upon their quarry from three

directions and two of them negligently fired in the third's direction to

inflict an indivisible injury, the lack of true concert of action seems of

little consequence. Even without the cause-in-fact problem dealt with by

the Summers v. Tice court, the acts of the independent tortfeasors are,
in their most crucial aspect, related in their joint and inseparable invasion

of plaintiff's bodily integrity. Only the nicest of legal distinctions would

justify treating the cases differently and denying joint and several liability

in the latter. ^^"^ However, if defendants are not to be permitted to escape

liability by pointing the accusing finger at other wrongdoers, the logic

of the argument compels a plaintiff who is also at fault to bear entire
Hability for an impecunious concurrent tortfeasor. Comparative fault

might permit such plaintiffs to escape accountability, but only, and

properly so, at the cost of abandoning the "constructive" joint tort

argument.

'^'33 Cal. 2d 80, 199 P. 2d 1 (1948). In that case, two hunters had fired in the

plaintiff's direction and the evidence could not establish which one had fired the injurious

shot. The court, noting rather explicitly that the three parties were acting as a team, saw

the case as an appropriate one to apply principles of joint and several liability. Id. at

84, 199 P. 2d at 2-3. Moreover, the court expressed its belief that true concert of action

was not an essential aspect of the case, and indicated that it would apply the principle

even where the actors produced the injury independently. Id. at 88, 199 P. 2d at 5.

'"5ee W. Prosser, supra note 74, at 293-99 and authorities cited therein.
'^"A parade of horribles is possible. Consider the case of the slightly negligent shooter

and the grossly negligent shooter whose pellets in combination cause plaintiff to lose a

limb. If the grossly negligent defendant is impecunious, the plaintiff should not be denied

full recovery on the simple ground that a suggested jury instruction results in a low



714 INDIANA LAW REVIEW [Vol. 17:687

An extension of logic carries similar risks for the plaintiff using the
argument in a true joint tortfeasor case. Since the proposed jury in-

structions are keyed specifically to the definitions of the two classes of

defendants, if plaintiff persuades the court that his case involves a third

class of tortious actors, he and the court face a statutory void. If the

court fills that void with the common law and proceeds in a pre-
Comparative Fault Act manner, the plaintiff who has contributed neg-
ligently to his own injury will be totally barred from recovery. On the
other hand, although the statute's proposed jury instructions do not

carry the substance of the Act, they surely provide a clear outline of

the mechanical principles for the court's guidance. A court may be
persuaded to fill the void of precise statutory language with a set of

jury instructions tailoring the apportionment principle to the joint tort

case.'"*^

The plaintiff might also argue that the joint tortfeasors who are
excluded by the two defined classes of defendants may be subject to a
"pure comparison" of fault. This approach focuses on the language of

section three, which merely sets out the general apportionment principle.

That section does not refer to defendants, and thereby avoids the problem

of an undefined
*

'third" class of defendants. It could therefore be vahdly

applied to joint tortfeasors. The plaintiff would assert that the "greater

than 50% rule" of section four would not bar his action because it is
keyed to the two classes of defendants. This interpretation, which brings

two sections of the Act into conflict, must be viewed as contrary to

the spirit of the Act. The argument may be advanced, however, as an
"implication" of the Act no less technically "necessary" than the ab-

olition argument. '^^

In view of the possible pitfalls of the "third class" of defendants

arguments, the plaintiff may prefer to argue simply that, although it is
not clearly stated, the set of instructions pertaining to multiple defendants

who may be treated as a single party is the applicable set. In its most
legally significant effect the rule of joint and several liability has always

treated joint tortfeasors as a single party. In their concert of action they

have combined into a single invasionary force to bring about a harm
to the plaintiff. The culpable acts of each as independent and separable

elements become inconsequential to the liabihty each may be made to
bear. The plaintiff would argue that the basis of liability of each
defendant is not "his own alleged act or omission" in the sense of
distinct individual conduct. Instead, the plaintiff would assert that the

interdependency of the acts, related in concert, requires the defendants

percentage of "fault" for the other tortfeasor nor upon the ground that the slightly

negligent defendant did not cause the entire injury.

'^''See, e.g., the jury instructions at supra note 118.

'^This is another reason the drafters should have stated the main principle of the

Act in a unified affirmative manner. See supra notes 56-67 and accompanying text.



1984] hIRS I GLANCL 7 1

5

to be treated as a single party. If this argument prevails, the jury would

assess the "fault" of the defendants in the aggregate, and adjust the

plaintiff's damages proportionately.'"

{4) Legal and institutional validity of the required jury procedure. —
The plaintiff might assume arguendo the practical effect argument and

shift his attack to concentrate upon the legal and institutional validity

of the jury process required by the Act. This attack would focus upon

the requirements of section six.'^^ Because section six requires the re-

citation of special findings of fact (the percentages of fault and the

calculations required by the instructions),'^^ the Act effectively requires

the jury to answer interrogatories. This requirement raises a troublesome

issue of institutional conflict between the legislature and the courts

concerning the respective powers of those two branches to determine

rules of procedure. Rule 49 of the Indiana Rules of Trial Procedure

declares simply: "Special verdicts and interrogatories to the jury are

abolished. "'^° If section six of the Act resurrects jury interrogatories for

this class of legal proceedings, a trial judge will be placed in the quan-

dary of whether to follow the Act's prescription or to heed Rule 49.

The Indiana Supreme Court has recognized the General Assembly's
coordinate power in promulgating rules of procedure for the courts.'^'

The court need not obtain legislative approval of its rules, and legislative

rules enacted in an area of judicial silence are to be treated as valid,

if only to protect rights that would be denied in the procedural vacuum.'^'

The quandary, therefore, is not resolved by a simple proposition that
one set of rules or the other always prevails.

Where the competing rules conflict, however, the court rules take
precedence: "[A] procedural rule enacted by statute may not operate as
an exception to one of [the court's] rules having general application. If

such an exception is to be made, it lies within [the court's] exclusive

province to make it."'^^ Therefore, if section six and Rule 49 conflict,

''Tor example, where the plaintiff's damages are $10,000 and the plaintiff's fault is

assessed at 20% and joint tortfeasors A and B have 30% and 50% fault respectively,
the jury would return an aggregate verdict of $8,000. Thus, A and B are treated as a
single defendant under the first set of instructions. A modification of the suggested form
at supra note 118 could be employed. The modification would include a finding that the

defendants were, by virtue of their joint conduct, being treated as a single party.

''"Ind. Code § 34-4-33-6.
'"/^.

'^Ind. R. Tr. p. 49.

'''E.g., Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585 (Ind. 1980); In re Pub.

Law No. 305 and Pub. Law No. 309, 263 Ind. 506, 334 N.E.2d 659 (1975); Neeley v.
State, 261 Ind. 434, 305 N.E.2d 434 (1974); State v. Bridenhager, 257 Ind. 699, 279

N.E.2d 794 (1972); Harris v. Young Women's Christian Ass'n, 250 Ind. 491, 237 N.E.2d
242 (1968); State ex. rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 157 N.E.2d 475

(1959).

"•^State V. Bridenhager, 257 Ind. 699, 703, 279 N.E.2d 794, 796 (1972).

'''Id. at 704, 279 N.E.2d 796-97. See also Johnson v. St. Vincent Hosp., Inc., 404

N.E.2d 585 (Ind. 1980); Neeley v. State, 261 Ind. 434, 305 N.E.2d 434 (1974).



716 INDIANA LAW REVIEW [Vol. 17:687

the trial judge must pay heed to Rule 49. '*-^

However, both rules may be valid if they are not truly in conflict.
If section six operates in an area of judicial silence, it is to be treated

as valid until the Supreme Court abrogates it by promulgating its own
rule.'-*' If the legislature has merely filled a void left by Rule 49, the

section should be able to withstand challenge. A direct positive-statement
versus negative-statement conflict is not required, however, and the

legislative rule must fall if it is "incompatible to the extent that both

could not apply to a given situation. '""^^ In the situation at hand, this

"incompatibility test" seems easily satisfied. First, Rule 49 is not simply

a void to be filled by the legislative rule as might have been the case

if the number of the Rule had simply been left vacant. The Rule

affirmatively abolishes jury interrogatories, and a trial judge could not

both allow and disallow the recitals required by section six. Second, the

recitals required by the section are, in effect, legislatively enacted ex-

ceptions to Rule 49, exceptions which arise only in "actions based on

fault." The suggested jury instructions must, therefore, fall as a legislative

incursion upon the "exclusive province" of the court. "*^

Even if all of the arguments for retaining joint and several liability

with the current Act's language are considered unpersuasive, the General

Assembly should revise the Act. The attempted balance disproportionately

benefits tortfeasors. If joint and several liability is abolished, multiple

tortfeasors are assured that the evenhandedness of pure apportionment

will prevent them from bearing more than their assessed proportion of

"fault," while a plaintiff is denied pure apportionment by the 50%
rule. A plaintiff who is 51% at "fault" must bear 100% of the cost
of the injury, while a defendant who is 51% at "fault" bears only 51%
of the liability. The defendant's 51% may have been instigating the
jointly neghgent (or willful, wanton, or reckless) concert of action with

a judgment-proof cohort.

An even greater inequity exists where the plaintiff is "fault"-free
and must bear the cost of the injury equal to the impecunious defendant's

"fault." The "evenhandedness" of this system of apportionment works

to the benefit of tortfeasors and to the detriment of injured plaintiffs.

Where possible, plaintiffs should be required to pursue judgment
against each person fairly chargeable with accountability for the injury.

'^^State V. Bridenhager, 257 Ind. 699, 279 N.E.2d 794 (1972).

'''Id.

"''Id. at 704, 279 N.E.2d at 796.

"^Id. There is a similar conflict with Trial Rule 54(D) if the practical effect of the

jury instructions is to require the entry of judgments that are only several and not joint.

Even if section six were construed as void and severable from the Act to avoid invalidating

conflict with Rule 49, section five's separate recitals of proportions of fault and related

individual verdicts are still vulnerable to challenge by the foregoing arguments.



1984] FIRST GLANCE l\l

However, defendants who would otherwise be jointly liable for the injuries
should not be able to cast the entire effect of the fortuitous presence

of an impecunious tortfeasor upon the plaintiff, especially if the plaintiff

is entirely free from fault. "*^ Plaintiffs who are not at fault do not share
the same interest in a comparative fault system as those who have
contributed to their own injuries. Innocent injured claimants clearly are
not elements of the "greater good for the greater number" legislative

compromise formula, and should not be asked to give up the common
law doctrine's protections.

Adoption of comparative fault signals the embrace of a policy of

refining the compensation function of tort law in order that injured

parties' needs may be more widely and accurately served. Abolition of
joint and several liability operates against that policy. At the same time,

the fairness element inherent in the comparative fault system powerfully

favors the interests of tortfeasors who rightfully claim that liability
apportioned to fault is meaningless if they are made to bear more than
their assessed percentage of fault. The answer to these competing interests

lies neither in a simplistic abandonment of joint and several liability

nor in a simplistic retention of the old common law doctrine and its
allied rules. Plaintiffs' and defendants' interests can both be addressed

if joint and several liability is retained in connection with the adoption

of two additional refinements of the compensation function. The first,

equitable reapportionment, addresses the problem of the judgment-proof

tortfeasor and requires all parties at fault to share the burden of the

impaired compensation that such defendants impose. '"^^ The second, a
rule permitting apportioned contribution among tortfeasors, addresses
the problem of malapportionment in the event the plaintiff elects to

pursue execution of the entire judgment against a single joint tortfeasor. '^°

(5) Equitable reapportionment as a substitute for joint and several
liability.—In cases in which the plaintiff is at fault, he should bear part
of the burden of the judgment-proof defendant's fault by an equitable

reapportionment of accountability. •^' Equitable reapportionment allows

"**Care must be taken to maintain the distinction between actions which involve a

vaHd case for joint and several liability, a true concert of action case, and actions in

which joinder of multiple but independent concurrent or consecutive tortfeasors has been

made for the sake of judicial efficiency. Absent a proper case for the application of joint

and entire liability upon a set of tortfeasors, the injured plaintiff has no claim to be

made better off by the application of the doctrine. It is simply because some courts and

attorneys have blurred the distinction and have apphed joint and several liability as a

matter of convenience that the defense bar has a basis for arguing against the plaintiff's

"empty chair" strategy. See infra notes 200-34 and accompanying text.

^"'^See infra notes 151-53 and accompanying text.

''°5ee infra notes 154-62 and accompanying text.

'5'This reapportionment is easily administered, although it may appear facially complex.
For example, if Plaintiff P, and defendants A and B were cutting down a tree which
fell on P because of all three's negligence, neither A nor P should be singled out to bear



718 INDIANA LAW REVIEW [Vol. 17:687

the plaintiffs to receive an amount closer to full compensation, while
the defendant's liability is not only apportioned to fault but also accounts

for the relationship of the defendant to her impecunious partner in tort.

The concert of action is addressed without requiring the solvent defendant
to pay the full amount that the rule of joint and several liability would
require."- Such reapportionment was recommended by the National Con-
ference of Commissioners on Uniform State Laws,'" and is an equitable
approach. The Indiana Act is not equitable, and should be amended to
include the Uniform Act's proposal.

F. Section 7: Contribution and Indemnity

1. Contribution.—Section seven of the Act bans contribution be-
tween tortfeasors.'--^ Why the Indiana legislature considered it necessary
to include the ban is open to question, given the Act's purported abolition

of joint and several liability,'^- and the fact that contribution is presently

unavailable at common law in Indiana.'-^ Whatever the reason, the ban

the entire cost of 5's acts if B is impecunious. Equitable reapportionment requires both
P and A to bear a fair share of 5's fault. If P's injuries were assessed at $10,000, and
P's, /I's and fi's "fault" at 33-1/3% each, 6/9 of the fault which produced the injury

is attributable to P and A. B's "fault," if equitably redistributed to P and A, would
add 3/18 to each of their shares of accountability. A's liability to P should, therefore,
be for 50% (9/18) of $10,000.

''-In the case of a nonculpable plaintiff, the principle produces the same result as

the common law.
'"Uniform Act, supra note 7, § 2(c)(d) at 39.

'5^lND. Code § 34-4-33-7 (Supp. 1984).
'"See supra text accompanying notes 90-94.

'-''The proposition of no contribution among joint tortfeasors was enunciated by the

Indiana Supreme Court at a very early date in the state's history. The first case appears

to be Hunt v. Lane, 9 Ind. 248 (1857), in which the court cited to Chitty on Contracts,

but to no earlier case. The proposition is so well-settled that the issue has rarely arisen

in litigation since. See Jackson v. Record, 211 Ind. 141, 5 N.E.2d 897 (1937) (dictum);

Silvers v. Nerdhnger, 30 Ind. 53, 60 (1868); Barker v. Cole, 396 N.E.2d 964 (Ind. Ct.

App. 1979). The rule, plus the position of Indiana courts that a release of one joint

tortfeasor is a release of all, has produced a practice of "loan receipt agreements," in

which one defendant or her insurance carrier will advance the plaintiff a sum of money

in return for a "covenant not to execute" by the plaintiff. The agreements essentially

provide for full or partial discharge of the loan in the event the plaintiff is unsuccessful

against the other tortfeasors, and for full or partial repayment of the loan from the funds

obtained in satisfaction of any judgment obtained against other tortfeasors. Thus, the

device serves both the function of providing an injured party with needed funds with

which to meet the additional financial needs produced by the injury, and the function

of limiting the lending defendant's exposure to liability for plaintiff's full damages. The

Indiana Court of Appeals has even approved such agreements executed after judgment.

Barker v. Cole, 396 N.E.2d 964 (Ind. Ct. App. 1979). However, that result was reached

over a vigorous dissent by Judge Staton arguing that such approval sanctions "a vehicle

whereby one economic inequity is cured by the creation of another," because the ability

to avoid full liability is dependent upon the financial liquidity of the settling defendant

and places the burden of the entire judgment upon the defendant lacking that liquidity.

Id. at 973 (Staton, J., dissenting).



1984] FIRST GLANCE 719

reflects the legislature's ambivalence toward the apportionment principle,

and stands as an unfortunate foreclosure of judicial use of contribution

to adjust and refine the comparative fault system in the state. U the
equitable reapportionment system suggested in the previous discussion

is adopted,'-^ for example, it could not be fully effective without an

amendment of the Act expressly permitting contribution.'^^ Defendants

made to bear a portion of the liability of insolvent or immune defendants
should be afforded the opportunity to recoup their additional outlays,

and should be enlisted in the effort to locate persons who might otherwise
avoid accountability.

If the Act is ultimately construed to have no effect upon joint and

several liabiHty, the proscription of contribution presents a serious im-

pediment to full utilization of the principles underpinning comparative

If the Act is interpreted as having abolished joint and several liability, it will curtail

the use of "loan receipt agreements" in their present form. Since separate verdicts for

each defendant will be rendered, the plaintiff no longer will have the opportunity to

execute against nonsettling parties for the full amount of damages from which repayment

of the loan can be made. Plaintiffs will not be able to repay the loan from judgment

proceeds without diminution of their ultimate compensation. For example, assume that

the plaintiff's damages were agreed to be $100,000 and the settling defendant advanced

the plaintiff $20,000 as a loan on the condition that the plaintiff repay the loan from

proceeds of execution on the judgment against the other defendants. If the jury's assessments

matched the parties' estimates and the settling defendant was found 20% at "fault," The
plaintiff would be obligated to repay the $20,000 from the amount recovered from the

other defendants. Assuming he was able to collect the remaining $80,000 from those

defendants, the plaintiff's net recovery after repayment would be $60,000. Knowing that

exposure to liability will be something less than the plaintiff's full damages, the settling

defendant can exert the leverage of financial need to hold down the negotiated estimate
of fault. If the jury's assessment of "fault" for the settling party exceeds the negotiated

percentage, the plaintiff's net recovery will be reduced even more. Plaintiffs thus have

little incentive to entertain "loan receipt" proposals except as a relatively quick source

of funds. Whether that prospect would be sufficient to induce a plaintiff to enter such

an agreement would depend upon individual financial circumstances, but the plaintiff's

counsel should fully advise clients of the ultimate cost of the "up front" money.

Plaintiffs' counsel should explore the feasibility of including terms in the agreement

which limit repayment solely to amounts recovered in excess of the agreed-upon estimate

of total damages. For example, if the plaintiff and the settling defendant agreed that the

plaintiff's total damages were $100,000 and that the settling defendant's share of "fault"

was 20%, the plaintiff might agree to repay a portion of the "loan" in the amount equal

to the excess recovered if the plaintiff receives verdicts aggregating more than $80,000

against nonsettling defendants.

'"5ee supra notes 151-53 and accompanying text.

"*Pro rata contribution, based upon proportionate shares of fault, is contemplated

by equitable reapportionment. Per capita contribution, or equal shares, is the only rational

method of division in a straight negligence system and has been outmoded by the de-

velopment of comparative fault. The legislature may have contemplated per capita con-
tribution in the ban and intended to foreclose the adoption of that method of contribution,

since per capita contribution is incompatible with apportionment based upon percentages

of "fauk."



"20 I.\DIANA LAW REVfEW [Vol. 17:687

fault. If a plaintiff is able to obtain satisfaction of the entire judgment

against a single defendant and that defendant is prevented from seeking

contribution from other tortfeasors, apportionment of the defendants'

fault will have been a meaningless exercise. Joint and several liability

can be an important doctrinal tool in a system designed to expand the

compensation function of tort law to afford relief to injured people

previously denied protection. '-^'^ Codification of the rule against contri-

bution, however, has shackled the judicial hand to another outmoded

principle. If the courts are persuaded that joint and several liability

should survive under the Act's language, section seven prevents them

from allowing those jointly liable defendants who have paid full sat-
isfaction to plaintiffs to benefit from the fairness of the apportionment

principle. If Indiana's Comparative Fault Act, a legislative reform based

upon rejection of the gross one-sidedness of contributory negligence,

prevents judicial attempts to avoid gross one-sided effects upon some

tortfeasors by foreclosing implementation of the apportionment principle

through contribution, the Act cannot seriously be termed a comprehensive

reform of tort liability in this state.

Faced with the perplexity of trying to operate in a comparative fault

system with an obsolete concept of contribution frozen in legislative

language, a court might find persuasive the logic that as long as the

ban on contribution stays, joint and several liability ought to go to

maintain balance. That logic labors under the same problem as the

"greater good for the greater number" argument for abolishing joint
and several liability. '^° It may have superficial appeal, but close ex-
amination shows that the balance swings too far. When joint and several
liability is aboHshed, the rule against contribution is redundant; no

detriment is imposed against defendants' interests which needs to be

counterbalanced. All of the detrimental effects are borne on the plaintiffs'

side of the bar. A rule against contribution is antithetical to the ap-
portionment principle.'^' To conclude that the compensation function of
tort law should be contracted for some injured people by abolishing

joint and several liability because an outmoded relic of the common
law negligence system which managed to slip into the Act would be a
detriment to some wrongdoers is not only bad logic, it is also bad

policy. The legislature should repeal the ban on contribution and replace

'^^See supra notes 146-48 and accompanying text. The Uniform Act, upon which the

Indiana Act is so heavily based, retains joint and several liability. That fact alone, in

view of the long and careful consideration that the Commissioners on Uniform State Laws

have given to a system of comparative fault, is a powerful argument for the retention

of the doctrine. See Uniform Act, supra note 7, § 2(c), at 39.

"^'5ee supra text accompanying notes 90-91.

"'See Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L. Rev.

130, 159 (1932).



1 984] FIRST GLANCE 11 1

it with an equitable system of contribution such as that proposed by

the Uniform Act.'^^

In the interim, courts persuaded that the ban on contribution flaws

the Act in principle and function may use a creative judicial approach

'"The Uniform Comparative Fault Act's provisions permit contribution limited by

each tortfeasors's "equitable share of the obligation." Uniform Act, supra note 7, § 4(a),

at 42. A settling tortfeasor may seek contribution "only (1) if the liability by the person
against whom contribution is sought has been extinguished and (2) to the extent that the
amount paid in settlement was reasonable." Id. § 4(b). If a party has paid "more than

his equitable share of the obligation, upon motion [he] may recover judgment for con-
tribution." Id. § 5(a). The judge determines the equitable share of each party and states

it in the judgment. Id. § 2(c). In addition, the judge reduces the claim of the releasing

party by the amount of the equitable share of the released party. Id. § 6. "Equitable

share" conforms to the percentage of fault assessed against the party by the trier of fact.

Id. The Commissioners provide an illustration for the system:

Illustration No. 11. (Effect of release).

A was injured through the concurrent negligence of B, C and D. His damages
are $20,000. A settles with B for $2,000.

The trial produces the following results:

A, 40% at fault (equitable share, $8,000)
B, 30% at fault (equitable share, $6,000)
C, 20% at fault (equitable share, $4,000)
D, 10% at fault (equitable share, $2,000)

A's claim is reduced by B's equitable share ($6,000). He is awarded a judgment
against C and D, making them jointly and severally liable for $6,(X)0. Their
equitable shares of the obligation are $4,000 and $2,000 respectively.

Id. at 45. The Commissioners acknowledge that some discouragement of settlement is

produced by this arrangement; they chose between alternative systems by giving primacy

to the apportionment principle. Id. at 44.

In effect, the Indiana Act adopts part of the Uniform Act's position. Since the trier

of fact will be required under most circumstances to assess a nonparty's "fault" and

factor that assessment into "total fault" for the purposes of apportionment, the plaintiff's

net recovery will be reduced by the percentage of "fault" attributable to the (settling)

nonparty. The separate sums-certain verdicts against tortfeasors who are parties to the
lawsuit arguably ensure that they do not pay more than their equitable share of liability.

However, without a right of contribution, the settling tortfeasor has no way to recoup

amounts paid in excess of the equitable share of Hability and is immune from contribution
from other tortfeasors if the settlement is for less than that share. Tortfeasors thereby

have an incentive to keep negotiated percentages of fault low. On the other hand, if the
plaintiff underestimates the settling defendant's fault, the amount of underestimation must

be absorbed by the plaintiff in the form of a reduced verdict. The Indiana Act exceeds

the Uniform Act's "tendency to discourage" settlements. If each party approaching

settlement were to have some assurance that their settlement estimates would not ultimately

penalize them, then the usual economic incentives to avoid litigation would be free to

operate.

To accomplish that objective, one system would first reduce plaintiff's claim by the
amount received in settlement. That might produce a slight disincentive on the plaintiff's
part to settle, but since the plaintiff would be assured of receiving full damages, he would

incur no penalty. This disincentive also might be overcome by the fact that the "up
front" settlement funds would save trial expenses. Next, the defendants remaining in

litigation would receive verdicts against them for the remainder in proportion to their



722 INDIANA LAW REVIEW [Vol. 17:687

respective percentages of "fault." This would assure that the plaintiff received full com-

pensation, but no more. Then, the party or parties who had paid more than their equitable
share of damages would be entitled to contribution from those who had paid less. In the
situation of a nonculpable plaintiff, the onus would fall upon the wrongdoers in the case

to obtain the equitable adjustment and, contrary to the Uniform Act proposal, the innocent

injured party would not be permitted to receive less than full compensation. Culpable

plaintiffs would also benefit, but since the total damages would also have been reduced

by the plaintiff's contribution of "fault," there would be no danger of overcompensation.

The settling defendant would have an incentive to keep negotiation estimates of fault low

in order to avoid the necessity of seeking contribution, but the incentive to avoid under-

estimation and consequent contribution to other defendants would be at least as strong.

In addition, settling defendants would have the assurance that errors in estimates of "fault"

would not be final. Illustrations of the method follow:

Case A:

P injured by D, E, and F.
P's damages = $100,000

P settles with D for $20,000
Jury finds percentage of fault to be:

P, 0%
D, 1007o

E, 30%
F, 600/0

P's claim would be reduced by the amount received from D ($100,000
-$20,000 = $80,000).
E's verdict reflects her liability for the proportionate share of the

$80,000 remainder (3/9 of $80,000 = $26,666.66).
Fs verdict reflects her liability for the proportionate share of the
$80,000 = $53,333.34). Since D paid twice her equitable share of
hability, she would be entitled to contribution from E and F to the
extent of their equitable shares. D would then be entitled to $3,333.33
from E and $6,666.67 friom F.

Case B:

If all the facts were the same except that E settled with P for $20,000.
D's verdict would be for $11,428.58 (1/7 of $80,000). Fs verdict would
be for $68,571.42 (6/7 of $80,000). D would be entitled to $1,428.58
and F would be entitled to $8,571.42 contribution from E.

Compare American Motorcycle Ass'n v. Superior Court of Los Angeles County, 20

Cal. 3d 578, 605-08, 578 P. 2d 899, 916-18, 146 Cal. Rptr. 182, 199-201 (1978) (permits

a tortfeasor to obtain "partial indemnity" from other nonsettling tortfeasors on a "com-

parative fault basis" after plaintiff's claim is reduced by the amount of settlement), with

Pierringer v. Hager, 21 Wis. 2d 182, 191-92, 124 N.W.2d 106, 111-12 (1963) (allows a
released tortfeasor to avoid contribution to nonsettling tortfeasors and requires plaintiff's

claim to be reduced by the amount of the nonsettling defendant's percentage of fault).

See also Kennedy v. City of Sawyer, 228 Kan. 439, 461-62, 618 P. 2d 788, 803-04 (1980)

("If the reasonable amount of the damages is determined to be more than the settlement

figure, all tortfeasors will receive the benefit of the bargain struck by the settling tort-

feasors"; a settling tortfeasor having paid plaintiff's full claim will be entitled to "seek

apportionment from his cotortfeasors based on comparative degrees of responsibility."

Kennedy, 228 Kan. at 461-62, 618 P. 2d at 803, 804.

The Indiana Act is too roughly hewn on the issues of contribution and joint liability.

Settlements may well occur because the economics of settlement will supply strong arguments
in any case. However, those settlements will not have occurred because the Act promoted

them. The Indiana General Assembly should amend these provisions soon to permit the



1984] tIRSI GLANCE 111

permitting partial indemnification among joint tortfeasors.'^'^ This ap-
proach is technically simple, but since it requires the modification of a

common law rule, judicial approval may prove exceedingly difficult to
obtain.

2. Indemnity.—Section seven of the Act, after banning contribution
among tortfeasors, declares that rights of indemnity are not affected. '^"^

Indemnity, like contribution, operates in the tort system as a legal means

of obtaining reimbursement for monies paid to an injured person. The

traditional common law concept of indemnity is an "all or nothing"
proposition. Either the indemnitee is entitled to be reimbursed for the

whole of the judgment paid by the indemnitee, or no entitlement exists

at all.'^^ The parties do not share accountability as in contribution; the

indemnitor is required to make the indemnitee whole on the basis of
restitution.'^^

Rights of indemnity arise in a variety of situations. Full treatment

of the doctrine and the circumstances to which it applies is beyond the

scope of this discussion, but a general idea of the occasions which give

rise to rights of indemnity can be obtained from descriptions contained

in the Restatement (Second) of Torts, § 886B:

(1) If two persons are liable in tort to a third person for the

same harm and one of them discharges the liability of both,
he is entitled to indemnity from the other if the other would

be unjustly enriched at his expense by the discharge of the

liability.

(2) Instances in which indemnity is granted under this principle

include the following:

(a) The indemnitee was liable only vicariously for the con-

duct of the indemnitor;

(b) The indemnitee acted pursuant to directions of the

indemnitor and reasonably believed the directions to

be lawful;

(c) The indemnitee was induced to act by a misrepresen-

tation on the part of the indemnitor, upon which he
justifiably relied;

(d) The indemnitor supplied a defective chattel or per-

formed defective work upon land or buildings as a

result of which both were liable to the third person,

and the indemnitee innocently or negligently failed to

Act to operate more in keeping with the apportionment principle and to permit parties

more flexibility in shaping nonlitigation alternatives to resolving their disputes.

'"See infra notes 183-88 and accompanying text.

'^Ind. Code § 34-4-33-7.
'"1 F. Harper & F. James, supra note 74, § 10.2, at 723; W. Prosser, supra note

74, § 51, at 310; Restatement (Second) of Torts § 886B (1979).

'^Restatement (Second) of Torts, supra note 165, § 886B comment c.



724 INDIANA LAn REVIEW [Vol. 17:687

discover the defect;

(e) The indemnitor created a dangerous condition of land
or chattels as a result of which both were liable to the

third person, and the indemnitee innocently or negli-

gently failed to discover the defect;

(f) The indemnitor was under a duty to the indemnitee
to protect him against the liability to the third person. '^^

The first three categories involve situations in which the indemnitee is

not actually at fault but has been made accountable to a third person
on the basis of some relationship with the indemnitor. The last three

categories address circumstances in which the indemnitee may or may
not have been at fault.

In contrast, Indiana case law recognizes the right of indemnification

in only the first three categories. It has long been the view of Indiana

courts that the right of indemnity does not arise if the person seeking

indemnity may be considered a joint tortfeasor. '^^ Only where the in-
demnitee has been held liable upon a theory of "derivative" or "con-

structive" fault does the right arise. '^^ Absent a contractual obligation

to indemnify, the only situation in which a right of indemnification

exists in Indiana is when liability has been imposed against the indemnitee

because of her vicarious liability for the acts of the indemnitor. The

Indiana Act has contemplated defendants in the Restatement's first three

categories. Section two of the Act refers to a "defendant [who] may
be treated along with another defendant as a single party where recovery

is sought against that defendant not based upon his own alleged act or
omission but upon his relationship to the other defendant. "'^° For ex-

ample, if A, who was the employee of B, injured the plaintiff, B will
be "treated along with . . . [A] as a single party."'"" The assessment

of "fault" against A will apply to B pursuant to the jury instructions
of section five of the Act.'^^ Any payment made by B in satisfaction
of the judgment may be the subject of an action for indemnity by B

'''Id. at 344-45.

'''"See, e.g., Westfield Gas & Milling Co. v. Noblesville & Eagletown Gravel Road
Co., 13 Ind. App. 481, 482, 41 N.E. 955, 956 (1895) (dictum).

"'''See Indiana State Highway Comm'n v. Thomas, 169 Ind. App. 13, 24, 346 N.E.2d
252, 259 (1976) (citing McLish v. Niagra Machine & Tool Works, 266 F. Supp. 987, 991
(S.D. Ind. 1967)). The McLish court cited Silvers v. Nerdlinger, 30 Ind. 53 (1868) and

City of Gary v. Bontrager Construction Co., 113 Ind. App. 151, 47 N.E.2d 182 (1943).

See also Bituminous Casualty Corp. v. Hedinger, 407 F.2d 655 (7th Cir. 1969); Augustine

v. First Fed. Sav. & Loan Ass'n of Gary, 175 Ind. App. 597, 603, 373 N.E.2d 181, 184
(1978) (Garrard, J., concurring and dissenting in part); cf. Bash v. Young, 2 Ind. App.

297, 28 N.E. 344 (1891) (good faith purchaser allowed indemnity against seller for owner's

judgment).

'"Ind. Code § 34-4-33-2(b).
'''Id.

"'Id. § 34-4-33-5(a).



1984] FIRST Gl.ANCE 725

against A on the restitution principle. '^^ The Indiana Act has no effect
on 5's rights against A.

If A and B are multiple defendants instead of parties who may be
treated as a single defendant, a different result occurs. Consider an

example based upon the Restatement's category (2)(e):'^^ assume that A
was constructing a power line through B'% premises and the plaintiff,

5's invitee, was injured when he came in contact with the line as he

entered 5's property. The plaintiff sued A and B, citing A's negligent
construction and ^'s negligent failure to discover and correct the hazard.

If the Restatement view is followed, B, who was "passively negligent,"
would have a right of indemnification against A, the "actively negligent"

tortfeasor. Defendant B would be able to recover any payment she made
to the plaintiff in satisfaction of the judgment against her.'^^ Under the

Indiana Act and applicable common law, the jury would be instructed
to assess the proportionate fault of A and B and render a verdict against
each based upon portions of "fault," and B would have no right of
indemnification against A for any monies she paid to the plaintiff in
satisfaction of the judgment against her.'^^

Thus, preservation of indemnification is consistent with the Act's

two classes of defendants. Defendants' rights of indemnification are

neither enlarged nor contracted by the Act. The common law of indemnity
in Indiana therefore promises no assistance to joint tortfeasors who have
paid more than their share of Hability. If the doctrine of joint and

several liability is found to have been unaffected by the Comparative

Fault Act and if a plaintiff executed judgment against a single tortfeasor,

comparative fault would be an empty phrase for that tortfeasor. In this

class of cases, little actual refinement of the compensation function of

tort law would have been accomplished. The new system of liability will
simply allow some claims that plaintiffs' fault previously would have

barred.

'"See Indiana Nitroglycerine & Torpedo Co. v. Lippincott Glass Co., 165 Ind. 361,
75 N.E. 649 (1905).

'^''Restatement (Second) of Torts, supra note 165, § 886B(2)(e).

'^'Circumstances like the hypothetical will more than likely produce an occasion for

applying principles of joint and several liability. Even in situations where the defendants

are not acting in concert, a single, indivisible injury will give occasion to treat the two

tortfeasors as jointly and severally liable in many jurisdictions. The point being raised in
this discussion is not dependent upon an assumption that one of the tortfeasors has been

required to pay the entire judgment, although that will probably have been the result.

So long as B satisfies the criteria for indemnification under the Restatement's category
(2)(e), she would be entitled to reimbursement for the total amount she paid in satisfaction

of the plaintiff's judgment against her, regardless of whether that amount represented the

plaintiff's total injury or a portion attributable to B's negligence.

'^'^The conclusions stated here follow from the Act and the common law regardless
of the ultimate position adopted by the courts on the issue of the Act's effect upon joint
and several liability.



726 INDIANA LAW REVIEW [Vol. 17:687

If Indiana courts believe that the balance struck should not simply

be in plaintiffs' favor, but should also take into account defendants'

interests, and if the courts reason that the law of indemnity can serve

as a vehicle for fully implementing the comparative fault system, some

features of the common law of indemnity will have to change. First,
the right to be indemnified will have to be extended to joint tortfeasors.

Second, since the Act's explicit ban upon contribution forecloses further

common law development of that principle for the benefit of defendants
in Indiana, the indemnity doctrine's "all-or-nothing" operation will have

to be abandoned in favor of a rule permitting restitution which amounts

to partial indemnification. Finally, measurement of the amount of res-

titution will have to be made on the basis of the apportionment of
fault. These are significant changes, and a court would understandably

be reluctant to depart from the simpler and more easily administered

common law rule. Courts should overcome that reluctance and adopt
a rule of partial equitable indemnification.

The proposition that joint tortfeasors are not entitled to indemnity

amounts to a rule in search of a rationale in Indiana jurisprudence.

The case most often cited for the proposition, Silvers v. Nerdlinger,^^^

offers only the suggestion that wrongdoers in pari delicto are not entitled

to the remedy. If that is indeed the rationale, it has been removed

by the adoption of apportionment of fault. Under the prior negligence

system, no occasion was presented for determining the respective quan-

tities of fault of multiple tortfeasors. Having been found jointly negligent,

each defendant was liable to the plaintiff for the entire amount on that
basis alone. The plaintiff alone decided whether to seek satisfaction of

the entire judgment or only a portion from a single defendant. In the

eyes of the law, the defendants were equally at fault, and if one defendant

claimed to have paid more than her fair share of the judgment, no

basis existed for determining how much one defendant should reimburse
the other.

Support for this view is found in the other leading case in the state.

City of Gary v. Bontrager Construction Co.^^^ In that case, the city

argued that its right to recoup from a contractor who created a hazard,
any damages it may have to pay to a person injured on city streets,
should prevent the injured person from recovering from the city in the

first instance. The court, while acknowledging the validity of the general
proposition that a city could under certain circumstances recoup damages

paid for the wrongdoing of a third party contractor, rejected the city's

argument. '^"^ The basis for the rejection was that cities permitted in-

demnification in earlier cases had not been at fault. In the instant case.

'^^30 Ind. 53 (1868).

'^M13 Ind. App. 151, 47 N.E.2d 182 (1943).

'-"'Id. at 160, 47 N.E.2d at 186.



1984] FIRST GLANCE 111

evidence of the city's independent negligence existed, and the city's claim

for ultimate recoupment therefore had no foundation.'^'' In hght of the

Bontrager Construction court's analysis, it is apparent that where a basis

for comparing the fault of the tortfeasors is presented, that is, where

negligence on the part of one tortfeasor and mere vicarious liability on

the other's part is present, indemnification is available. Where both are
at fault, the proposition of in pari delicto denies the remedy.

Comparative fault supplies the needed foundation for recognizing a

right of indemnification of one tortfeasor by another. The old, rough-

hewn determination of the mere presence or absence of negligence has

been replaced by the apportionment principle. Even in joint tort situ-

ations, the jury's findings attribute specific proportions of fault to the

actors. The presumptive in pari delicto concept is removed from the

process, and in its place are concrete judgments about the relative

culpability of defendants. A rational basis is supplied for deciding whether
one tortfeasor should recover against another for payments made in
excess of that culpability.'^'

Another rationale supporting the rule against joint tort indemnifi-

cation is that the law will not stand in aid of a wrongdoer, '^^ although

that rationale has not been articulated in Indiana case law. If that

proposition ever had any vaHdity in the context of indemnity, '^^ the very

essence of the comparative fault system militates against its continued

use. Wrongdoing on the part of both plaintiffs and defendants is ac-

knowledged, evaluated, and apportioned so that interests on both sides

of the case may be served. The Indiana courts have adequate reason
under the Comparative Fault Act to depart from the obsolete Nerdlinger

view of indemnification.

By the same token, adoption of comparative fault opens the way
for abandonment of the "all-or-nothing" operation of indemnity. Partial

indemnification made no sense in the old system of liability where joint
tortfeasors had no basis for claiming reimbursement in any amount less

than the total sum they paid in satisfaction of the judgment debt. The
common law doctrine of contribution, if available at all, was the closest
the courts could come, and the apportionment provided by that doctrine

'""M at 161-63, 47 N.E.2d at 186-87.

'^'Further support for this view can be found in those jurisdictions which permit

indemnification of a "passively" negligent tortfeasor by an "actively" negligent one. That

approach demonstrates that where courts are able to discern a difference in the character

or quality of the actors' fault, a right to indemnification follows. The Indiana courts

have rejected this approach however. Coca-Cola Bottling Co.-Goshen v. Vendo Co., 455

N.E.2d 370 (Ind. Ct. App. 1983); Indiana State Highway Comm'n v. Thomas, 169 Ind.
App. 13, 346 N.E.2d 252 (1976). See McLish v. Niagra Machine & Tool Works, 266 F.
Supp. 987, 991 (S.D. Ind. 1967) (citing Indiana Harbor Belt R. Co. v. Jones, 220 Ind.

139, 41 N.E.2d 361 (1942)).

'«^5ee W. Prosser, supra note 74, § 51, at 311.



728 L\DIANA LAH REVIEW [Vol. 17:687

was rational in a case of joint and several liability only upon an equal

division, or per capita basis. '^^^ Apportionment of fault, a determination

the Indiana Act requires in every case, supplies the needed logical support

for restitution of a sum certain reflecting the indemnitor's portion of
the damages paid to the injured plaintiff.

The sum certain can be determined by applying the percentages of
"fault" assessed against the defendants in the trial of the case. For

example, assume the plaintiff's damages are found to be $100,000, and

the "fault" of the parties is assessed in the following percentages: plaintiff

- 20^70 ; defendant one (£>') - 30<^o; defendant two (D^) - 50%. The

plaintiff's verdict would be for a total of $80,000 against D^ and D^

as joint tortfeasors. Supposing the plaintiff executed against /)' for the

entire judgment and D^ satisfied it, Z)' would have an equitable claim

for partial indemnity against D^ in the amount of $50,000. Under this

approach, the comparative fault system's aim of improving the com-

pensation function of tort law will have been achieved without sacrificing

the fundamental fairness of the apportionment principle.

Precedent for this approach exists in other jurisdictions.'^^ One court
has grounded the remedy solidly upon the principle of fairness in pre-

venting unjust enrichment. '^^ Another has rehed heavily upon principles

of restitution to create an equitable "contribution based upon relative

fault. "'^^ The label is theoretically unimportant. '^^ In this new era of
tort law in Indiana, the principles driving the comparative fault system

should be given full play for the benefit of all parties whose rights and

obligations are to be adjudicated under that system. The old common
law rules of contribution and indemnity served their purpose in a system

of unrefined determinations of fault. Their simplicity and ease of admin-

istration suited them well in that system. Those qualities alone do not

justify their perpetuation in the new system. Contributory negligence is,
after all, a simple and easily administered principle in contrast to ap-

portionment of fault. The Indiana legislature's ban on contribution has

petrified that doctrine and preserved it as a relic of the past. The doctrine

of indemnity is still a part of the living common law. The Indiana courts
should not shrink from applying their equitable powers to fashion a

'*"See Leflar, supra note 161, at 136; W. Prosser, supra note 74, at 310.
'"The leading case is Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288,

331 N.Y.S.2d 382 (1972). See also American Motorcycle Ass'n v. Superior Court of Los

Angeles County, 20 Cal. 3d 578, 578 P. 2d 899, 146 Cal. Rptr. 182 (1978); Tolbert v.

Gerber Indus., Inc., 255 N.W.2d 362 (Minn. 1977); Missouri Pac. R. Co. v. Whitehead

& Kales Co., 566 S.W.2d 466 (Mo. 1978).
'^"'Missouri Pac R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466, 469-70 (Mo.

1978).

'^Tolbert V. Gerber Indus., Inc. 255 N.W.2d 362, 367 (Minn. 1977).
'*'*'What the remedy is called may induce a more receptive attitude, however. A given

court may be more inclined to apply the principles of restitution to prevent a tortfeasor
from being unjustly enriched than it would to create a new doctrine of "partial indemnity,"

even though the function is the same.



1984] FIRST GLANCE 729

new remedy from the elementary principle of fairness, a common de-
nominator of indemnity and comparative fault.

G. Section 8: Government Entity and Public Employee Exceptions

Section eight of the Act, which will be invoked in cases arising

under the Indiana Tort Claims Act, proclaims that the Comparative

Fault Act "does not apply in any manner to tort claims against gov-

ernmental entities or public employees under I.C. 34-4-16.5."'*^'^ Since

the Act does not apply, any plaintiffs suing under the Tort Claims Act

will be subject to common law defenses and principles of liability. ''^^^

Those plaintiffs' claims will be completely barred for any contributory

negligence,'*^' and defendants will be foreclosed from invoking the ap-

portionment principle. By this section, the Indiana General Assembly

has again equivocated on its acceptance of the comparative fault system

of Hability. If governmental entities and their employees operated in a

world insulated from general social intercourse, a dual system of liability

would raise only policy considerations: the fairness of the duality, the

economics of maintaining two systems, and the question of whether

societal interests in protection from harm are adequately served by the

two systems. Government workers are, however, actively involved in

daily life. Many of the passersby at any busy intersection are likely to
be carrying out some governmental function. The possibility of a claim

involving the government worker as a joint or concurrent tortfeasor is

not remote. In such a case, the problems of a dual system of liability

become acute. Practical issues in the administration of a dual system

are joined with and underscore the considerations of fairness, economics,

and utility of preserving the otherwise abandoned common law negligence
doctrine for the benefit of government.

If a plaintiff alleges that the negligence of a government worker,

A,^^^ and a private individual, B, combined to injure him, the Indiana

Act's misplaced deference to government immediately presents the court

with difficulties in managing the case. The court has two options: (1)
to separate the governmental case from the non-governmental case and

'^'iND. Code § 34-4-33-8 (Supp. 1984).
'^See City of Fort Wayne v. Cameron, 267 Ind. 329, 333-34, 370 N.E.2d 338, 340-

41 (1977) and cases cited therein.

'''Any contributory negligence that is overcome by the last clear chance doctrine will,

of course, not bar the plaintiff's action. See the discussion of the last clear chance doctrine

in the context of comparative fault, infra notes 465-501 and accompanying text.

'^^For the sake of simplicity, it is assumed that the government would also be sued.

At any rate, the Tort Claims Act requires the governmental entity to pay the judgment

against an employee "when the act or omission causing the loss is within the scope of
his employment, regardless of whether the employee can or cannot be held personally

liable for the loss and when the governor, in the case of a claim or suit against a state
employee, or the governing body of the political subdivision, in the case of claim or suit

against an employee of a political subdivision, determines that paying the judgment . .

. is in the best interest of the governmental entity." Ind. Code § 34-4-16. 5-5(b) (1982).



730 INDIANA LAIV REVIEW [Vol. 17:687

conduct two trials, or (2) to try the case as a normal multiple defendant

case, instructing the jury differently with respect to the two defendants.

The first option requires a total duplication of effort and expense.

It may present difficulties of proof, and the jury will have to be carefully
instructed to prevent confusion about why it should not consider one
of the actors involved in the case. For these reasons a court might decide

to try the case at one time under both systems of liability.

The second option, to try the case as a normal multiple defendant

case but with separate jury instructions for each defendant, has nothing

to recommend it over the first. Approaching the case this way would
require an explanation to the jury that B's fault is to be apportioned,

but A's fault is not. Concerning 5's Hability to the plaintiff, B could
argue that A should be treated as a "nonparty," thereby reducing the
ultimate damages award. The plaintiff would counter by saying A is
not technically a "nonparty" under the Act's definition of that term,'^^

and that B's liability should not be reduced by bringing A into the case
when the Act "does not apply in any manner" to ^. If a court accepts
B's "nonparty" argument, it will be faced with explaining to the jury

how a party present in the case is to be treated as a "nonparty" for
the purposes of comparative fault for B, and then explaining how that
same "nonparty," A, is liable to the plaintiff without apportionment.

If the plaintiff's argument is accepted, however, apportionment of "fault"

against either tortfeasor would be inappropriate.

The matter gets more complicated if the plaintiff is partly at fault.

One problem arises if two trials are conducted and the jury finds the

plaintiff at "fault" in the trial against B. In the subsequent trial against

A, the defendant might assert that the finding of "fault" in the case

against B ought to be binding in the plaintiff's case against A. The
plaintiff should be able to successfully overcome ^'s assertion by pointing

out that the principles of collateral estoppel do not support A's assertion;

A would be seeking to benefit from collaterally estopping the plaintiff
from relitigating the issue of "fault" without having risked liability in

the trial against 5.'^"^ If the jury in A's trial finds the plaintiff free of

"fault," A has no way of using the fact findings in 5's trial to impeach
the second verdict. The plaintiff is under similar hmitations if he decides

to litigate the claim against A first: he may not use the findings in ^'s

'"Und. Code § 34-4-33-2(a) (Supp. 1984).
'"•Since defendant A was not actually a party to the plaintiff's action against E,

sufficient identity of parties would be lacking for A to attempt to estop the plaintiff
from claiming that the issue of "fault" was open in his claim against A. See Indiana

State Highway Comm'n v. Speidel, 181 Ind. App. 448, 392 N.E.2d 1172 (1979). Compare
Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), with Blonder-Tongue Laboratories,

Inc. V. University of Illinois Foundation, 402 U.S. 313 (1971) (cited by the Speidel court

for the proposition that the identity of parties requirement of collateral estoppel has been

abandoned in federal courts.).



1984] h IRST GLANCE 731

trial (such as a finding that he was not contributorily negligent) to his

benefit in the trial against BJ'^^

Regardless of whether two trials are conducted, issues concerning

the plaintiff's ultimate right of recovery arise in cases involving gov-

ernmental and nongovernmental defendants. Since the Act does not apply

in the case against A, for example, a judgment against A would entitle
the plaintiff to seek satisfaction for the entire amount of his damages

against A. Normal principles of joint and several liability would prevent

A from resisting the plaintiff's attempts to recover the entire judgment.
If the plaintiff obtains a favorable verdict in the case against B and

executes on that judgment first, other problems arise. For example,

assume the jury found the plaintiff's unadjusted damages to be $100,000,

^'s "fault" to be 40%, and B's "fault" to be 60<yo.'96 If the plaintiff
obtains satisfaction of the $60,000 judgment against B, should the court

entertain ^'s claim that she should benefit from the apportionment,

even though the Act does not apply, and limit the plaintiff's execution

against A to $40,000?'^^ The argument by A, that the plaintiff would
enjoy a windfall if permitted to recover the full $100,000 from A in
addition to the $60,000 from B, might seem fairly persuasive. It is not

entirely clear, however, that A should be heard to make that argument
under the collateral source rule.'^^ Given the Act's inapplicability, A is
vulnerable to the counterassertion that a limitation of recovery would

amount to a windfall for her.

The amount of legislative detail necessary to address all of these

'^^Principles of due process prevent fact findings in the trial against B from being
used to A's detriment in the trial against her. The nonmutuality of parties (the plaintiff

was not proceeding against A in the trial against B) prevents findings of fact from being
used by A to the plaintiff's detriment. These principles are not dependent upon a judgment
having been rendered in the first trial. They should therefore be applicable in a situation

where the court conducts the proceedings pursuant to Indiana Trial Rule 42. Compare

the federal court's allowance of collateral estoppel in Barron v. United States, 654 F.2d

644, 649 (9th Cir. 1981).

'^^This example assumes that A is treated as a "nonparty." See infra text accompanying
notes 200-34.

'^^The plaintiff need not seek satisfaction first from B for this type of problem to
arise. If he first obtained satisfaction of the entire judgment from A, it is unclear whether

B would have a claim that the judgment against her should be discarded. If the Act is
construed to have abolished joint and several liability with respect to the claim against

B, upon what basis would B assert that the judgment against her had been discharged?
See supra text at notes 90-94. Furthermore, payment of tort claims against governmental

agencies is subject to approval by that entity as being "in the best interest of the

governmental entity." Ind. Code § 34-4-16. 5-5(b) (1982). If the decision of the governmental
entity is that payment should be limited by the apportionment of "fault" to the government

employee, has not the entity in essence applied the Act for its own benefit?
'''^See Evans v. Breeden, 164 Ind. App. 558, 561, 330 N.E.2d 116, 118 (1975) (quoting

9 I.L.E. Damages § 86: "Compensation for the loss received by plaintiff from a collateral

source, independent of the wrongdoer, as from insurance, cannot be set up by the wrongdoer

in mitigation of damages.")



732 INDIANA LAW REVIEW [Vol. 17:687

issues probably means they will have to await judicial treatment. If such
a case is ever brought to litigation, uncertainty and confusion from the

Act's preservation of the old system for Tort Claims Act cases seems

unavoidable.

Section eight is alleged to have been another fruit of the political

compromise necessary to obtain passage of the Act.'^^ No legal reasons
have been publicly offered in support of that compromise, and none
are apparent. Indiana's exclusion of governmental entities is unique

among statutory enactments of comparative fault. Maintenance of the
dual systems of liability which the exclusion requires should have more
to recommend it. The exclusion should be repealed.

H. Section 10: The "Empty Chair Defense"

One of the main points of contention between proponents and
opponents of the bill proposing comparative fault in Indiana was whether

the fact finder should be able to take into account the culpable conduct

of persons not party to the lawsuit in its apportionment of fault. ^°°

From the defendant's point of view, any culpability attributable to
another person ought to reduce the defendant's share of liability in a

system based upon apportionment of fault. If the jury must find that

the combined fault of the named parties totals lOO^o, some distortion
of apportionment must inevitably result in cases where more than one

tortfeasor contributed to the injury, but not all tortfeasors were named
in the action. If, for example, one tortfeasor was impecunious or could

present circumstances which might evoke the sympathies of the fact

finder, the plaintiff might deliberately refrain from naming that tortfeasor

as a defendant in the hopes of enhancing the chances or extent of

recovery. The named defendant would then likely bear full responsibility,
having committed only part of the fault which contributed to the injury,

since the "total fault" of the named parties would have to equal 100%.'°'

In effect, the plaintiff could enjoy the advantage of injecting the non-

present actor's fault into the case without the disadvantages presented

by that actor's peculiar circumstances. The nonpresent actor would be

figuratively represented by an "empty chair" in the courtroom. A face-
less, nameless entity whose only meaningful quality was fault would

occupy that chair, and the only way such fault could be accounted for
would be to attach it to the other parties to the action. If the plaintiff

were found to be free of fault, the entire burden of this phantom

'^Remarks of Mr. Bayliff, supra note 87.

^"Id.

^'"To illustrate, assume two actors equally at fault in producing the plaintiff's injury.

If one actor was insolvent and the fact finder found each of the actors 50% at fault,
the plaintiff's actual recovery would be limited by 50%. If the insolvent actor was not

named in the suit and the fact finder could not take her fault into account, the plaintiff

could impose 100% of the liability upon the solvent actor by refusing to name the insolvent.



1 984] FIRST GLA NCE 7 3

3

defendant's fault would be borne by the named defendant. Facing the
possibility of such a distortion of the apportionment principle, a de-

fendant would want the system to be capable of factoring all culpable

acts into the apportionment formula. Two methods for attaining that
objective are (1) requiring the plaintiff to name all actors thought to
be at fault as defendants, or (2) permitting the finder of fact to consider

nonpresent persons' fault in the apportionment decision and allowing

the "fault" of the named parties to total less than 100%.

From the plaintiff's point of view, neither of the two alternatives
is inherently attractive. The first requires the plaintiff to name all po-
tentially liable actors, regardless of the magnitude of that potential

liability or the other disadvantages of having those actors as parties to

the action. Multiple actor cases might become unwieldy, expensive, or

time-consuming in ways not commensurate to the fragments of com-

pensation recoverable from some actors. Some tortfeasors may be people
whom the plaintiff would prefer not to sue if given the choice, such
as relatives. Other tortfeasors may be immune, and to name such persons
might be a dry exercise. The second alternative requires the plaintiff to

bear the burden of the nonpresent person's culpability, since any "fault"

attributed to that person means a proportionate reduction of the verdict

obtained in the cause of action.

On a relative scale, the second alternative permits some discretion
by plaintiffs, and would be generally preferable over the first. If the

plaintiff saw no disadvantage in naming all potentially liable actors to

the lawsuit, he would be permitted to do so under the second alternative

while retaining the flexibihty to leave some persons out of the case if

he beHeves the reduction in the ultimate verdict to be an acceptable

cost. The Indiana Comparative Fault Act adopts the second alternative

in the form of an affirmative defense. Section ten, added by the 1984

amendments, permits a defendant who pleads the defense to "assert .
. . that the damages of the claimant were caused in full or in part by

a nonparty. "^°^ The plaintiff in such a case still bears the burden of
proof with respect to the causal connection between the tortfeasors' fault

and the injury, ^^^ but if a defendant pleads a "nonparty defense"-°^ she

must prove the causal connection between the nonparty's actions and

the plaintiff's damages. ^°^

The section imposes specific time limits for raising the defense, but
confers some discretion upon the trial court to provide some flexibility.

^^Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 5, § 10(a), 1984 Ind. Acts 1468,

1471 (codified at Ind. Code § 34-4-33-10(a)).
^^IND. Code § 34-4-33-10(b).
'"^Id. § 34-4-33-10(a).

^°Vc?. § 34-4-33-10(b).



734 INDIANA I Air REVIEW [Vol. 17:687

Generally, the defense must be pleaded when the defendant knows of
it, except that when the plaintiff has served the complaint more than

150 days before the expiration of the statute of limitations for the action

against the nonparty, the defendant has until 45 days before the expiration

of the period of limitations to plead it.'"^ The court is empowered to

adjust the time limits so long as the defendant has a "reasonable

opportunity to discover the existence of a nonparty defense"^^'^ and the

plaintiff has time to name the nonparty as a defendant before the statute
of limitations expires. -^^^

If the defendant is a "qualified health care provider" under the

Medical Malpractice Act,^"^ section ten applies to claims brought pursuant

to that Act.-'" However, the "nonparty defense" must be pleaded within

90 days from the date the plaintiff's claim was filed with the insurance

commissioners.-" The court is given similar power to modify the time

limit in malpractice proceedings under restrictions similar to those in

ordinary lawsuits.^'- This subdivision ensures that the medical review

panel, required by the Medical Malpractice Act, will be timely apprised

of any assertion that the plaintiff's injury was wholly or partially caused

by anyone other than the defendant named in the original claim before
it begins its determination of the issues of causation and breach of the

standard of care.-'^

Recognition of the nonparty defense by section ten thus forecloses

plaintiffs' use of the "empty chair" strategy and places it in the hands

of defendants. If the plaintiff is unwilling or unable to name the person
the defendant asserts as another source of the plaintiff's injuries, the

defendant will attempt to attribute as much "fault" as possible to the
phantom occupant of the "empty chair" in order to reduce her own
share of liability. Where the plaintiff chooses not to name the other
person as a defendant, this defense is consistent with principles of fairness

and apportionment of fault since it will ensure that the defendant bears

no more than her proportionate share of liability, and any resultant
reduction of the plaintiff's compensation will stem from the plaintiff's

own choice.
When the plaintiff is unable to name the nonparty, however, the

defense may strain both the fairness and apportionment principles. In
such a case, the nonparty is not a party to the suit for reasons beyond

the plaintiff's control. The identity of the nonparty may be unknown

^'^'Id. § 34-4-33-10(c).

""Id. § 34-4-33-10(d)(l).

"^Id. § 34-4-33- 10(d)(2).

'"'Ind. Code tit. 16, art. 9.5 (1982).
2'^^lND. Code § 34-4-33-10(d). See also infra notes 235-41
^"Ind. Code § 34-4-33-10(d).
'''Id. § 34-4-38-10(d)(l), (2).

''\See generally Ind. Code §§ 16-9.5-9-1, -10 (1982).



1984] I IRST GLANCE 735

to the parties, or the person may be beyond the jurisdiction of the court
or immune from Habihty. In the usual two-party situation outside the
Act's appHcation, these conditions would prevent the plaintiff's recovery.

These conditions, however, affect the legal relation of the plaintiff and

the would-be defendant. In the multiple actor case, the legal relations

between the plaintiff and the defendant on the one hand, and the plaintiff

and the nonparty on the other, do not seem so inherently connected

that the former should be affected by flaws in the latter. The concept

of joint and several liability might supply a connection in logic, policy,

fairness, or precedent in some cases, but that concept and its elements

would argue in favor of the plaintiff and full liability, not in favor of

the defendant and reduced compensation.

The defense permits an over-emphasis of notions of causation to

encroach upon the apportionment decisions of the fact finder. Faced

with multiple actor cases, even where it is clear that the named defendants'

acts satisfy all legal requirements of a cause of action founded upon

fault, juries will be asked to segment the cause of action as if it were

a series of actions against several individuals rather than a single action

against a group of actors. In cases of indivisible injuries, juries will be

asked to pretend that those injuries are capable of division, and that

this divisibility logically follows from an apportionment of fault. The

comparative fault system in general is founded upon the important fiction

that the fact finder is capable of ascertaining portions of fault from

the facts of the case with precision. The "empty chair" defense presses

that fiction into service beyond what it can comfortably bear in cases

of this sort.

One potential problem if an "empty chair" defense is available is
the situation where a worker is injured at the workplace as a result of

the combined fault of his employer and a third party, and the worker

sues the third party. The employer, being immune from tort liability,
could not be named as a party to the tort action. If the third party
tortfeasor were to be able to raise the employer's fault as a "nonparty

defense" under section ten, serious difficulties would arise in connection

with the plaintiff's ultimate recovery and the employer's right to obtain

reimbursement for payments made pursuant to the workers' compensation
statutes. ^"^ The potential difficulty presented is that the plaintiff would
suffer a double reduction of compensation if his verdict were reduced

by the amount of the employer's "fault" and then he had to reimburse
that employer from the proceeds of the already reduced verdict. Section

ten does not specifically address this problem, but it has been solved

by the 1984 amendments' definition of "nonparty," which specifically

^'"The problem is discussed in greater detail in conjunction with the examination of

section twelve. See infra text accompanying notes 242-305.



736 INDIANA LAW REVIEW [Vol. 17:687

excludes employers.-" Third party tort actions brought by workers will,

therefore, be treated as if the conduct of the employer is not involved.

That is not to say that the employer's conduct is capable of being

ignored in the presentation of the case and the assignment of account-

ability. Plaintiffs' counsel would accordingly be well-advised to make
sure that the jury is fully and clearly instructed on the law in this regard,

so that it understands that it is not to attribute to the employer any

responsibility for the plaintiff's injury, either in the percentages of fault

it computes or in the determination of damages before adjustment. The

Act's suggested jury instructions, even with removal of the "nonparty"

language, are clearly inadequate for such purposes.

Allegiance to the apportionment principle argues strongly in favor

of the defense. If the named defendant is made to bear the consequences
of the absent actor's fault, apportionment of fault would seem to have

been scrapped for the sake of compensating plaintiffs. At this level of

simplicity, and from a defense orientation, the objection appears to be

well-taken. It should be remembered, however, that the policy of ex-

panding the compensation function is at least as important as the policy

of applying the apportionment principle in the adoption of comparative

fault. Considerations of fairness support the defense where plaintiffs'

choice of strategy is the primary reason for imposing the burden of

someone else's fault on the defendant. Where no one has chosen to
leave that other person out of the lawsuit, fairness principles strongly

suggest that both the defendant and the plaintiff should bear the burden;

resolution of the matter should not be dependent upon a simplistic notion

of apportionment oriented either toward plaintiffs' or defendants' in-

terests. If the plaintiff and the defendant hurt each other in combination

with a third person, they would each participate in the benefits and

burdens of the nonpresence of that third party. ^'^ The same should be

true where the plaintiff is the only person to have been injured. Section

ten casts the entire burden upon the plaintiff regardless of the reason

for the nonparty's absence from the suit, and thereby tilts the balance

of fairness in defendants' favor. The noninjured defendant has no more

-'-Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 1, § 2(a), 1984 Ind. Acts 1468,

1468-69 (codified at Ind. Code § 34-4-33-2(a)).

^'^For example, if the plaintiff were found to be 30% at "fault," the defendant
40%, and the third party 30% at "fault," plaintiff would recover 40% of his damages
and defendant 30% of her damages under the defense; each shares proportionately the
burden of the defense. However, if the fact finder was not permitted to take the third

party's "fault" into account, the plaintiff's proportion of "fault" becomes 42.9%, and

the defendant's becomes 57.1%. Pursuant to the Act's "greater than 50%" rule, the
defendant's recovery would be totally barred. The defense permits the defendant to avoid

this harsh result. Furthermore, this benefit of the defense is not dependent upon the status

of the parties as plaintiff or defendant; the same result is produced where plaintiff's and

defendant's percentages of fault are reversed.



1984] FIRST GLANCE 131

of a claim for strict adherence to the apportionment principle than does

the injured plaintiff. When the plaintiff must absorb the fault of the
phantom defendant, as much distortion of the apportionment principle

occurs as when the defendant must, and forcing the plaintiff to accom-

modate also impairs the compensation principle.

The problem of malapportionment demonstrates that the issues raised

by a nonpresent tortfeasor are not simple. Simplistic, one-way rules to

supply answers to those issues are not satisfactory. The "empty chair"

defense has received far less than unanimous acc^iptance by other au-

thorities. The Indiana Act goes well beyond the position taken by the

National Commissioners in the Uniform Act, for example. That body

beheved it better to keep the fault of third persons out of the lawsuit

unless those persons could be named as parties. ^'^ The commissioners
recited the lack of "certainty whether that person was actually at fault

or what amount of fault should be attributed to him, or whether he

will ever be sued, or whether the statute of limitations will run on him,"

plus the fact that the determination of none of those issues could be

binding upon the nonparty, in support of its position. ^'^ Courts of
California,"''^ Kansas,"° Oklahoma,^"' West Virginia, ^^^ and Wisconsin^"

have required the acts of all persons to be taken into account in

apportionment decisions, regardless of whether they have been named
as parties to the lawsuit. However, under various circumstances, courts

in Arkansas, 2^^^ Florida, ^^^ Hawaii,^^^ Oregon, ^"^ and South Dakota^^^ have

excluded the fault of persons not named as parties from consideration
by the fact finder.

Even the treatise writers disagree. Mr. Schwartz believes "[a] result

more compatible with the goals of comparative negligence is reached by
determining the negligence of all concurrent tortfeasors irrespective of

^"Uniform Act, supra note 7, commissioners' comment at 39.

-'''American Motorcycle Ass'n v. Superior Court of Los Angeles County, 20 Cal. 3d

578, 578 P. 2d 899, 146 Cal. Rptr. 182 (1978).

^'°Geier v. Wikel, 4 Kan. App. 2d 188, 603 P. 2d 1028 (1979).

22'Paul V. N.L. Indus., Inc., 624 P. 2d 68 (Okla. 1980).

^^^Bowman v. Barnes, 282 S.E.2d 613 (W. Va. 1981).

^"Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721 (1934).
'''See H. Woods, supra note 27, § 13.3, at 224-25.

"'Kapchuk v. Orlan, 332 So. 2d 671 (Fla. Dist. Ct. App. 1976) (other parties' collisions

with plaintiff's automobile subsequent to defendant's collision treated as plaintiff's con-

tributory negligence).

2^^Sugue V. F.L. Smithe Machine Co., Inc., 56 Hawaii 598, 546 P. 2d 527 (1976).

But see Barron v. United States, 473 F. Supp. 1077 (D. Hawaii 1979), rev'd in parr, 654

F.2d 644 (9th Cir. 1981) (apportioning fault of employer immune to direct suit by injured

worker).

"^Conner v. Mertz, 274 Ore. 657, 548 P. 2d 975 (1976).

^2«Beck V. Wessel, 90 S.D. 107, 237 N.W.2d 905 (1976) (applying guest statute: host's

negligence not used to reduce plaintiff passenger's recovery).



738 INDIANA LAW REVIEW [Vol. 17:687

whether they are parties to the suit."^^^ Judge Woods, having compared
cases from jurisdictions with opposing views, concludes that

[i]t is unrealistic to ask jurors to determine percentage of

fault of tortfeasors who are not before the court. A reading of
the case reports demonstrates that the Wisconsin practice has

proved vexatious to its courts. On the other hand, by only
apportioning fault among parties actually before the court, Ar-
kansas has had no demonstrable problems. ^^°

With respect to both writers, as this brief discussion has attempted

to demonstrate, the issue is not as simple as either of them would have

it. The focus of the system should not be so narrow as to exclude

accommodation of either the apportionment principle or the need for

judicial efficiency. At this late date of development, comparative fault

systems should be refined enough to offer a flexible approach based

upon equitable principles to avoid or resolve practical problems without

departing from the elemental concepts of the system of liability. Rather

than imposing a rigid one-way rule which requires one party or the

other to bear the burden of the nonpresent actor's fault, a comparative

fault system ought to be able to take the peculiar circumstances of a

given case into account. Some circumstances may well exist under which
it is both realistic and reasonable to expect the fact finder to apportion

fault to a nonparty. That may especially be true where the plaintiff
chooses not to name that person. Where the absence of a tortfeasor is
not attributable to the decision of any of the parties to the action or

where it is not reasonable to expect a jury to assess the fault of the

nonpresent actor, the courts should have the ability to equitably distribute

the burden among all of the named parties. A workable system might
be one similar to the Uniform Act's treatment of released, insolvent,

or immune tortfeasors, where the plaintiff's claim is reduced in proportion
to a released tortfeasor's equitable share of fault, and all present parties

equitably share the burden of an insolvent or immune defendant's li-
ability.^^' The system assuredly is not as simple as a one-way rule, and

requires coordination of the apportionment function with rules of joint

and several liability, rights of contribution and indemnity, motions prac-

tice, and the courts' exercise of equitable jurisdiction. In the tort system's

adjustment of rights between people, in which compensation for injuries

is determined by close evaluation and assignment of quantums of culp-

ability, however, simplicity is not necessarily a virtue.

When the 1984 amendments added the "empty chair" defense to
the Act, the suggested jury instructions in section five were only cos-

metically amended; they do not truly reflect the substance of section

"^V. Schwartz, Comparative Negligence 122 (Supp. 1981).

^^H. Woods, supra note 27, § 13.3, at 224-25.

"'Uniform Act, supra note 7, §§ 2, 6 and commentary.



1984] FIRST GLANCE 739

ten. Section ten makes the defense an affirmative defense, and places
the burden upon the defendant. Where the defendant does not raise the
defense, it clearly would be improper to instruct the jury to ''determine

the percentage of fault ... of any person who is a nonparty, "^^^ since
even when the defense is raised the fact finder may not automatically
consider ''any person who is a nonparty," as these instructions suggest.
Together, the Act's definition of a "nonparty" as "a person who is,
or may be, liable to the claimant in part or in whole for the damages
claimed, "2" the requirement that the jury name the "nonparty"^^^ in
the verdict, and the specificity with which section ten treats the defense,

indicate quite strongly that the fact finder is not to assign accountability

for the plaintiff's injuries to just any person whose actions the fact

finder believes to be faulty. The incentives to name all potential de-
fendants are strong enough that a case involving a valid nonparty defense

will be relatively infrequent, placing the general applicability of the

suggested instructions in further doubt, and enhancing the responsibility

of the bench and bar to ensure that usage of the instructions do not

become routine and automatic.

/. Section 11: Coordination Between the Comparative Fault and
Medical Malpractice Acts

When an injured person has been harmed by several people, some
of whom are "qualified health care providers" under the Medical Mal-
practice Act and some of whom are not, the injured person would face
possible problems of coordinating the actions against the various parties

unless one or the other of the two Acts made allowance for the medical
review panel process of the Medical Malpractice Act. That Act does

not permit a tort action against certain qualified defendants until a

review panel has rendered its opinion on issues of causation and breach

of the applicable standard of care."^ If a nonqualified defendant's

conduct had combined with the qualified defendant's, the action against

the nonqualified defendant might reach the trial stage before the pre-

liminaries under the Medical Malpractice Act had been completed. -^^^

"^IND. Code § 34-4-33-5(a)(l), (b)(1).
2"M § 34-4-33-2(a).
'^"M § 34-4-33-6. The requirement of section six, that the party be named, probably

does not mean that the defense will fail unless the person can be named with specificity.

Under proper circumstances, a "John or Jane Doe" identification should suffice. However,

the requirement clearly indicates that the defendant cannot raise a complete phantom from

the realm of conjecture and require the jury to surmise that someone else "must or may

have" contributed to the plaintiff's injury.

^"IND. Code § 16-9.5-9-2 (1982).
"'^Delays in the process have been acknowledged by the Indiana Supreme Court in

Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585 (Ind. 1980). A recent trial level
decision, citing Department of Insurance statistics showing that the average case filed with

the insurance commissioners takes nearly two years from the filing date to receive a



"40
I.\DIANA LAW REVIEW [Vol. 17:687

Section eleven solves the problem by permitting the trial court to

"grant reasonable delays"-'" in the action against the nonqualified de-

fendant "until the medical review panel procedure can be completed.""^

If the review panel procedure produces an opinion allowing the mal-

practice action to proceed, the court must permit the plaintiff to join

the qualified defendant as party to the tort action begun against the

nonqualified defendant.-''^

This compulsory continuance and joinder provision of section eleven

relieves a plaintiff from the problems of conducting simultaneous pro-

ceedings dealing with the same set of facts. More importantly, it permits
the plaintiff to file an action against the nonqualified defendant within

the period of limitations without fear that the delays in the medical

malpractice proceedings would set up a "nonparty defense" for the

nonqualified defendant. '"^^ Had the Comparative Fault Act not provided
for this coordination, the nonqualified defendant might well have been

successful in convincing the fact finder to attribute some "fault" to the

qualified defendant, even though it turned out later that the medical

review panel's opinion foreclosed suit against the qualified defendant.

In such a case, the plaintiff would have had a reduced recovery against

the nonqualified defendant, but no recovery against the qualified de-

fendant. Section eleven's language could fairly be interpreted as indicating

that the Comparative Fault Act gives the nonqualified defendant no

"empty chair" defense respecting the qualified defendant's conduct.

"Nonparty" is defined by section two as a "person who is, or may be,
liable to the claimant. "^^^ Since section eleven permits continuance of

the action against the nonqualified defendant until the medical review

panel decision has been reached, an opinion by that panel in favor of

the health care provider would not only foreclose further proceedings

against the provider, it would sweep the provider out of the definition

of "nonparty," and thereby prevent the nonquahfied defendant from

asserting that the medical provider was at fault.

J. Section 12: The Diminution of Subrogation Claims, Liens, and

Claims

1. Introduction.—The named parties in a tort action are not always
the only entities interested in the outcome of the litigation. Often the

medical review panel opinion, held the Medical Malpractice Act unconstitutional. Warnick

V. Cha, S.D., 83-169, at 10 (Jasper Cty. Sup. 1983) (violating both the Indiana and the

United States Constitutions in depriving claimants of the "right to free access of the

courts.")

"iND. Code § 34-4-33-11.

^""'See supra notes 200-34.

^'Ind. Code § 34-4-33-2.



1984] FIRST GLANCE 741

injured party has received some assistance in dealing with the injury

from some other person or organization, and that provider looks to the

judgment obtained from the tort action as a source of reimbursement

for the assistance. Usually the provider is an insurer who has paid all
or some portion of the medical expenses of its insured. In the absence

of insurance protection, the assistance may have come from a hospital
or other medical care provider. In each case, the provider has legal

remedies to secure reimbursement for expenditures made on the injured
party's behalf. Section twelve of Indiana's Comparative Fault Act mod-

ifies the extent to which such providers may obtain reimbursement, by
diminishing the legal devices of "subrogation claims or other liens or

claims"'"^^ under certain conditions. Liens and subrogation rights pursuant

to the Indiana Workmens' Compensation Act and Occupational Disease

Act, however, are specifically excluded from the section's operation, and

require separate consideration.

2. Subrogation Claims.—To obtain reimbursement for designated
expenses, an insurer employs a clause in the insurance contract conferring

upon it the right of subrogation. 2"*^ The insurer may exercise the right
by an action against the tortfeasor whose acts occasioned the need for

the expenditures, or by a claim against the insured. ^'^'^ The insurer has

standing to sue the tortfeasor on the theory that the insurer is substituted

for the injured party as the real party in interest, or, "standing in the

shoes" of the insured it brings an action in the name of the insured. ^'^^

Where the insurer seeks to recover from its insured, the action is grounded
in the theory of restitution; presumably, since the insured has recovered

for the expenses related to the injury, it would be unjust to permit him

to retain items of damages for which he has already been compensated. ^"^^

If the collateral source rule prevents the tortfeasor from reducing damages

^^^iND. Code § 34-4-33-12 (Supp. 1984).
^"^The right probably is not dependent upon a subrogation clause. Rights in the nature

of subrogation have been recognized in the common law at least since the seventeenth
century, even when no subrogation clause was part of the contract. However, because
the common law would not aid a volunteer in obtaining reimbursement for such ex-
penditures, the conduct of the subrogee must be of sufficient character to have been more

than that of a mere volunteer to invoke principles of equity based upon the concept of
constructive trust. See Marasinghe, An Historical Introduction to the Doctrine of Sub-
rogation: The Early History of the Doctrine, 10 Val. U.L. Rev. 45, 275 (1975). See also

Aetna Casualty & Sur. Co. v. Katz, 177 Ind. App. 44, 377 N.E.2d 678 (1978) (subrogation
allowed when insured paid claim despite later discovery that the actual cause of damage
was not one covered by the provisions of the policy).

^''\6 Couch on Insurance 2d §§ 61:4, 61:26, 61:29 (rev. ed. 1983). See Aetna
Casualty & Sur. Co. v. Katz, 177 Ind. App. 44, 377 N.E.2d 678 (1978) (action against
tortfeasor). See generally 4 G. Palmer, The Law of Restitution § 23.16, at 447 (1978).

^M6 Couch on Insurance 2d, supra note 244, §§ 61:26, 61:27, 61:36. See N4arasinghe,
supra note 243, at 295.

^""^In his treatise on Restitution, Professor Palmer argues that since proceeds from

insurance do not always compensate fully for actual loss, a mechanistic presumption of



~-i- INDIANA LAW REVIEW [Vol. 17:687

by the amount of benefits previously paid to the plaintiff, the possibihty

of overcompensation is removed by permitting the subrogated provider

to recover the funds advanced.-'*'

Section twelve of the Act appHes to certain providers of "medical

expenses or other benefits" for injured persons whose tort recovery has

been reduced by apportionment of fault or uncollectibility of the judg-

ment.-"^'' Where the latter conditions exist, the "subrogation claim or
other lien or claim . . . shall be diminished in the same proportion as

the claimant's recovery is diminished. "^'^'^ Thus, in a case where the

plaintiff had been found 20% at "fauh," the subrogated provider of
medical benefits will be entitled to restitution of 80% of the amount
advanced to the plaintiff.

On the face of it, this statutory reduction of the provider's rights
may seem arbitrary and unfair. The connection between the plaintiff's
"fault" in contributing to his own injuries and the obligation arising
between the plaintiff and the provider does not seem close enough to

warrant a reduction of the provider's rights. Consideration of the basis

of accountability in the context of subrogation rights, however, places

the provision in a broader perspective, and its fairness and consistency

with the compensation function of comparative fault becomes apparent.

The subrogated injured party's obligation usually springs from a
clause in the contract of insurance similar to the following:

In the event of any payment under the medical expense

coverage of this policy, the company shall be subrogated to all
the rights of recovery therefor which the injured person or anyone

receiving such payment may have against any person or orga-
nization and such person shall execute and deliver instruments

and papers and do whatever else is necessary to secure such

rights. Such person shall do nothing after loss to prejudice such
rights. 250

The obligation need not arise from such a subrogation clause, and may
actually be based upon operation of law, 2-' but in either case the nature

overcompensation in every case where the plaintiff recovers medical expenses in the tort

judgment and from insurance proceeds is unwise, a departure from principles of unjust

enrichment, and a failure to maintain a proper perspective upon the interests of the injured

person. 4 G. Palmer, supra note 244, §§ 23.15-23.17.
^"'"16 Couch on Insurance 2d, supra note 244, § 61:18, at 93-94; 4 G. Palmer,

supra note 244, § 23.15.

^^IND. Code § 34-4-33-12.

^'"Id.

^^"4 G. Palmer, supra note 244, § 23.18, at 457 (quoting Peller v. Liberty Mut. Fire

Ins. Co., 220 Cal. App. 2d 610, 34 Cal. Rptr. 41 (1963); Shelby Mut. Ins. Co. v. Birch,

196 So. 2d 482 (Fla. Dist. Ct. App. 1967); Demmery v. National Union Fire Ins. Co.,
210 Pa. Super. 193, 232 A.2d 21 (1967)).

'''16 Couch on Insurance 2d, supra note 244, § 61:2, at 75-76, § 61:19.



1984] FIRST GLANCE 743

of the subrogated provider's right is the same: the provider is entitled

to be placed in the position af the injured party with respect to recovery

for the expenses paid.^^^ Since the right is thereby tied to the underlying

right of the injured party to recover against the tortfeasor, ^^ and is in

that sense derivative, it is subject to the defenses which the tortfeasor

might raise against the injured party. ^^"^ Thus, in a contributory negligence

system, if the plaintiff's action is barred by his own fault, the provider's
right of recovery under subrogation is also extinguished."^ No money
judgment in the underlying action can exist to provide a source of funds

from which subrogation reimbursement may come. Given that restitution
is the underlying theory of recovery, the equitable principle is not invoked

in such a case because the plaintiff has not been unjustly enriched."^

The function of restitution theory in preventing unjust enrichment

similarly operates where the provider seeks reimbursement from the

injured recipient rather than from the tortfeasor. If the subrogated

plaintiff recovers some damages in the tort judgment, but less than full
compensation for the injury, the provider is not entitled to full reim-

bursement."^ The burden is upon the party asserting the right to res-

titution to prove that the recipient of the benefits would be unjustly

enriched if permitted to retain both the judgment recovery and the

payments advanced by the provider."^ Some courts have used "equitable
distribution" in cases where the recovery has not been sufficient to cover

all of the plaintiff's losses plus the amount claimed for reimbursement.

The principle gives priority to the injured party's interests and the

subrogee obtains reimbursement only after the injured party has received

full compensation."^

In a comparative fault system, the plaintiff's partial fault will not

necessarily bar his tort action, of course, and cases will arise in which

recovery will represent less than full compensation for the injured party.

Juries operating under the Indiana Comparative Fault Act and the Indiana

Rules of Trial Procedure will render general verdicts which contain no

itemization of the elements of damages awarded or the extent to which

those elements are valued. ^^^ It would be impossible for an insurer to

establish any certain amount of restitution to which it was entitled in
such cases because it could not show how much, if any, of the recovery

^'^Id. § 61:36, at 118.

2"/Gf. § 61:212 at 274.

'''Id.

'''Id.

''"See 4 G. Palmer, supra note 244, § 23.15, at 440.

"'See id. at 438-39, § 23.18 at, 468-476; 16 Couch on Insurance 2d, supra note

244, § 61:43.

"«4 G. Palmer, supra note 244, § 23.18, at 470-71.
^^^16 Couch on Insurance 2d, supra note 244, § 61:44.
^^'Indiana Trial Procedure Rule 49 abolishes special verdicts and interrogatories to

the jury. See supra text accompanying notes 138-47.



744 INDIANA LAW REVIEW [Vol. 17:687

pertained to medical expenses. Generally, where the plaintiff's medical

expenses were established at a fixed amount and the verdict in the tort
action was sufficient to cover all of the plaintiff's alleged losses, the

difference between the verdict amount and the amount established for
medical expenses could fairly be said to cover all items of damages

except medical expenses. In a comparative fault case, the inference cannot

so easily be drawn. For example, if the plaintiff's unadjusted damages

were assessed at $100,000, and the plaintiff had offered proof of $10,000

in medical expenses, at this stage $90,000 would represent recovery for

nonmedical losses. That conclusion would not hold up if the plaintiff

had been found to be 10% at "fault." The resulting verdict would be
$90,000, the plaintiff might assert that full compensation had not been

received, and that he therefore had not been unjustly enriched. To the
extent that subrogation rights against the injured party are dependant

upon unjust enrichment, which must be proved by the provider, the

subrogated provider's claim of unjust enrichment could be wholly un-

dermined by reduction of damages according to apportioned fault.
Section twelve of the Act purports to save such subrogees from

losing their subrogation claims. Had the Act been silent on the question
of its effect upon subrogation claims, the theory outlined above may
have been employed to block attempts for reimbursement of medical

payments "or other benefits. "^^' Since the section addresses claims which

assert rights of subrogation and requires that the claims shall be merely

"diminished, "2^^ the argument may be maintained that the legislature
did not intend subrogees' rights to be defeated. To justify the mere
reduction of the right, the argument presumes that the overall percentage

reduction of the plaintiff's recovery represents a rate of reduction per-

taining to all items of damages asserted in the action. That is, in the

hypothetical case presented above, the presumption is that the item of

medical expenses (asserted by the plaintiff to total $10,000) has been

reduced by 10%. Extending the presumption would mean that $9,000
of the $90,000 verdict represents damages for medical expenses, and the

plaintiff holds the $9,000 for the provider.

The provision is arguably consistent with the compensation function

of comparative fault since plaintiffs who are not found at "fault" will
be treated as before and the effect of section twelve applies only to

that class of plaintiffs which would have enjoyed no tort recovery at

all under the contributory negligence system. Given the continued appl-

icability of the collateral source rule, if plaintiffs who had received
medical payments subject to contractual subrogation clauses were able

to defeat subrogation claims by asserting less than full compensation

recovery, the principle of apportionment of fault would be undermined.

^'iND. Code § 34-4-33-12.

'''Id.



1984] FIRST GLANCE 745

Comparing the result under section twelve with the result if plaintiffs

were able to rebuff subrogees on the above theory demonstrates the

point. Assume the same facts as presented in the above hypothetical

case: the plaintiff has suffered a $100,000 loss which has been recognized

by the jury. Medical payments in the amount of $10,000 have been

received subject to subrogation of the plaintiff's insurance carrier. The

plaintiff has been found to be 10% at "fault." The verdict in favor
of the plaintiff would then be $90,000, and the plaintiff is able to collect

the entire judgment. To this point, the plaintiff has received $100,000
for his $100,000 loss. If the carrier's subrogation right is defeated on

the theory that the plaintiff's tort recovery is less than full compensation,

the plaintiff will have obtained a net recovery of 100% of his alleged
loss. No apportionment of compensation resources in relation to his
"fault" will result; he will be in as good a position as the plaintiff

who was free from fault. Applying section twelve to the facts would
mean that the plaintiff would be required to honor the subrogation
claim in the amount of $9,000, less the insurer's share of litigation

expenses. ^^^ The plaintiff under those circumstances would receive a net

$91,000 in total compensation resources, a 9% reduction for his 10%
of "fault." He will actually fare better than a plaintiff under similar
circumstances who had no insurance. The resulting incentive to obtain
protection for accidental injuries providing for advanced payments to

ease the financial impact of such injuries may well be worth the partial
contraction of subrogation rights under the provision.

A feature of the language of section twelve that may give pause in
efforts to interpret and apply it is that it addresses subrogation claims,

not the obligations secured by subrogation rights. A claim has two
conceptual parts: the assertion that the subrogor is obligated to the

subrogee, and the demand for restitution. The claim is not the obligation
itself.^^"^ The amount demanded may be diminished by certain factors
extraneous to the obligation, but it does not necessarily follow that the

underlying obligation is diminished. As a practical matter, however,

unless an alternative remedy is available for discharging the remainder

of the obligation after the diminished subrogation claim is satisfied,

reduction of the claim is tantamount to reduction of the underlying

^"5ee 16 Couch on Insurance 2d, supra note 244, § 61:47; 4 G. Palmer, supra
note 244, § 23.18.

^'^See Black's Law Dictionary 224 (rev. 5th ed. 1979). Black's defines "claim" to
include "right to payment" in the sense employed in the Bankruptcy Act § 101(4). That

inclusion consolidates and reflects numerous references to statutory causes of action

contained in the Revised Fourth Edition, but the former edition did not use the phrase.

See also Ballantine's Law Dictionary 205 (3rd ed. 1969), which does not employ the
phrase, emphasizes the demand aspect of the term "claim," and states that the term
means "a cause of action for some purposes."" Id. (emphasis added). The distinction being

maintained here has to do with the substantive aspect of the obligation as contrasted with

the procedural aspect of the right to seek satisfaction of that obligation.



746 INDIANA LAW REVIEW [Vol. 17:687

obligation. The obligation may not have been fully discharged, but it
remains uncollectible. Since rights of subrogation are so closely tied to

the injured party's right of recovery against the tortfeasor, as the sample

subrogation clause quoted above illustrates,^" the subrogee is limited to

asserting a claim against the "fund" produced by the tort judgment. ^^^

In this light, section twelve may accomplish indirectly what it does not
do by direct language.

3. Liens.—A lien in its most general sense "is a charge against
property that makes the property stand as security for a debt owed."^^^

Distinctions may be drawn between equitable, common law, and statutory
liens in terms of the differing factual elements giving rise to them, the

various classes of providers protected, the character and extent of property

serving as the security, enforcement procedures, and the like, but the

shared element between them is that the lien is a remedy for enforcement

of an underlying obligation. ^^^ The obligation may be in the nature of
a debt created by contract, express or implied, or simply one that arises

by the law of restitution to prevent unjust enrichment. ^^^

If the provider of benefits is a hospital, the obligation arising from

the express or implied contract between the injured party and the hospital

is secured by a statutory lien.^^° The lien attaches to the judgment obtained

in the personal injury action against the tortfeasor. ^^^ The theory of

restitution to prevent unjust enrichment is again the foundation for the

remedy. ^^^ The lien, as distinct from the obligation, is a remedial right

conferred by the law to "detain" the assets of the obligor for the

purpose of permitting the obligee to obtain satisfaction. ^^^ Destruction

of the property thus encumbered means that the lien, if it has any

independent existence at all, has nothing to which to attach; the un-

derlying obligation, however, is not extinguished and the obligee may
still pursue other remedial courses to obtain satisfaction. ^^"^ The same

^^^See supra text accompanying note 250.
^^16 Couch on Insurance 2d, supra note 244, § 61:165.
^'^^D. DoBBS, Law of Remedies § 4.3, at 248 (1973). See Hubble v. Berry, 180 Ind.

513, 103 N.E. 328 (1913).

^'^See D. DoBBS, supra note 267, § 4.3, at 248-50; G. Douthwaite, Attorney's
Guide to Restitution § 8.3, at 331 (1977); 1 L. Jones, A Treatise on The Law of
Liens §§ 1-4 (1888); D. Overton, A Treatise on The Law of Liens: At Common Law,
Equity, Statutory and Maritime § 8 (1883).

2^D. DoBBS, supra note 267, § 4.3, at 249; G. Douthewaite, supra note 268, § 8.3,
at 332-33. See Restatement (Second) of Restitution ch. 3 (Tent. Draft No. 2, 1984).

^^ND. Code §§ 32-8-26-1, -2 (1982).
^''Id. See generally Annot., 25 A.L.R.3d 858 (1969).

^'^D. DoBBS, supra note 267, § 4.3, at 249.

^^M L. Jones, supra note 268, § 2, at 2 n.l (Mr. Jones used the term "retain");

D. Overton, supra note 268, §§ 1-5 (Mr. Overton used both "detain" and "retain").

^'"D. DoBBS, supra note 267, § 4.3, at 250; cf. D. Overton, supra note 268, § 9

(where the author professes that "there can be no lien where the property is annihilated").



1984] FIRST GLANCE 141

principle permits the lienholder whose lien attaches to a chattel that has

suffered a reduction of value in the hands of the defendant to seek

satisfaction for the full amount of the obligation by combining the action

for discharge of the lien with an action at law for the difference in

value. ^^^

This aspect of the legal concept of liens becomes important in the

context of section twelve because unless the section operates to diminish

the obligation underlying the lien as well as the lien, no diminution of

the lienholder's ultimate right of recovery will have been accomplished.

If, for example, the lien is for $10,000 worth of medical benefits

conferred, ^^^ and the recipient of those benefits is found to be 10% at
"fault" in his tort action, the provider's lien is diminished by $1,000,

but unless section twelve is also construed to have diminished the ob-

ligation secured by the lien, the lienholder may seek a supplemental
money judgment for that $1,000.^^^

The different footing upon which lienholders' rights rest, in contrast

to the rights of subrogated insurers, sets up a theoretical possibility that

lienholders would ultimately be able to thwart the effect of section twelve

and receive full reimbursement for the advances they have made to the
injured party. In general terms, equitable liens are based upon and are

intended to secure express or implied contractual rights between the

parties. If the express terms of the contract or the implied understanding

of the parties do not relate to the "fund" which is to be generated

from the personal injury judgment of the recipient but to some other

"fund," it would seem that neither the lien nor the underlying obligation

"exists in respect to a claim for personal injuries or death"^^^ as required

by section twelve. If such a case were to arise, and the lienholder asserted

the secured rights independently from the recipient's tort action, the

lienholder might argue that the case falls outside the contemplation of

the provision.

Beyond this theoretical possibility, such a case does not appear likely

under present Indiana law. No Indiana case has been found which has
recognized an equitable lien under circumstances like those under dis-

cussion. Indiana does, however, confer a statutory lien in favor of

hospitals providing medical services to injured parties, but since the lien

attaches to "any judgment for personal injuries rendered in favor of

any person [with some exceptions] . . . receiving treatment, care, and
maintenance therein on account of said personal injuries received as a

result of the negligence of any person or corporation, "^^^ the lien and

^"^D. DoBBS, supra note 267, § 4.3, at 250.

^^^Indiana Code section 32-8-26-1 for example, confers a lien upon hospitals having

furnished the injured party with medical services.

"'D. DoBBS, supra note 267, § 4.3, at 250.

^^''IND. Code § 34-4-33-12.

^'^ND. Code § 32-8-26-1 (1982).



748 INDIANA LAW REVIEW [Vol. 17:687

underlying obligation would appear to satisfy the elements of section

twelve. -^^^

4. Claims.—If the word "claim" has independent significance in

-"'Section twelve limits a "lien or claim" that otherwise satisfies the elements of the

provision. Logically, the lienholder could concede that the lien and the obligation asserted

in a related contractual claim were subject to diminution and still contend that since the

two remedies are not a unitary element, they should be serially diminished. To illustrate,
assume advances of $10,000 for which the statutory lien arises and that the plaintiff's

"fault" is assessed at 20%. This line of argument would assert that the lien would be
diminished by 20%, leaving $2,000 in the contract claim, which would then be reduced

by 20% or $400, allowing a total reimbursement of $9,600. Surely the legislature did not
intend lienholders and holders of subrogated rights to be treated differently. If that is

true, the logic of the lienholder's argument above compels a conclusion at odds with the

enactment. The logic is enabled by the failure of the language in section twelve to actively

and directly address what the section only apparently was designed to do—to treat the
rights of henholders and subrogated providers equally by reducing the injured party's

obligation to the holder of the right.

The design is apparent because the drafter equated subrogation rights and liens on

the one hand and treated liens and claims as equivalencies on the other. The phrase

"subrogation claim or other liens" is evidence of the equation of liens and subrogation

claims, and the pregnant word is "other." In ordinary usage, "other" sometimes denotes

the noun following it as a more general class of things of which the noun preceding it

is a member, as in the phrase, "apples or other fruit." See Kirk, Legal Drafting: Curing

Unexpressive Language, 3 Tex. Tech. L. Rev. 23, 36 (1971) {quoted in R. Dickerson,

Materials on Legal Drafting 129-30 (1981)). Used as an adjective it may also mean

one of a class that is left, as in "the only other apple you may have is on the tree,"
or one that is different, as in "I don't want that apple, I want the other one." Only

the drafter knows the precise semantic meaning of the term "other" in section twelve,

but the first usage here seems closest to the syntactic arrangement of the phrase in the

section. If that is true, the drafter must have thought of liens as a more general term

sharing characteristics with subrogation rights. Professor Kirk explains that in statutory

interpretation if "other" is used in a series it is actually construed as limiting the modified

term to the characteristics of the preceding items even though the drafter's intent may
have been entirely the opposite. See id. While the two devices do have several aspects in

common, liens are not just a more general class of legal devices, and the significance for

the applicability of section twelve lies in their differences. Since nothing serves as security

for the obligation which is the object of a subrogation right, and since liens may under
some circumstances be combined with other remedies, a suggestion that the phrase "sub-

rogation claims or other liens" means that subrogation rights are a member of the more

general class of remedies called liens is clearly incorrect in the law. An analogous phrase
in the same syntax as the one under discussion would be "apples and other oranges."

While this ascribed intent may be vulnerable to criticism from the standpoint of legal
accuracy, it would nevertheless support the argument that liens and subrogation claims

are intended alternative subjects to be similarly affected by the predicate clause of section

twelve. Simply because the drafter thought of liens and subrogation claims as alike does

not make them so, but it would indicate that the sense of the enactment is to treat the

two devices, and, by implication, their underlying rights, equally.

The phrase "lien or claim," simple as it may be, is even more troublesome. The

phrase appears in the predicate clause of the section ("the lien or claim shall be diminished")

as well as the subject clause. Many semantic difficulties reside in the use of the term
"or," since it has an exclusive sense, as in the phrase "apples or oranges may be picked"
(meaning apples may be picked or oranges may be picked, but not both) and an inclusive

sense (when the same phrase means apples or oranges or both may be picked). R.



1984] FIRST GLANCE 749

the subject and predicate clauses of section twelve, ^*^' the section may
fairly be said to diminish appropriate claims against the injured party,

regardless of whether the claim arises from or is associated with sub-

rogation rights or rights secured by liens. While the intended operation

of section twelve may be taken to be the same with respect to general
claims as subrogation claims and liens, the same deficiency of indirect

language is also present.

A comparison of section twelve language with the language of the
general substantive sections of the Comparative Fault Act brings the

indirectness of section twelve into high relief. The first substantive section

of the Act provides: "In an action based on fault, any contributory

fault chargeable to the claimant diminishes proportionately the amount

awarded as compensatory damages for an injury attributable to the

DiCKERSON, The Fundamentals of Legal Drafting, § 6.2, at 76-78 (1964) [hereinafter

cited as Fundamentals of Legal Drafting]. Drafting convention has it that the inclusive

sense is the meaning to be attached to the word in legislative interpretation, so it may
be said that the phrase "lien or claim" means lien or claim or both. Id. at 77; R.

Dickerson, The Interpretation and Application of Statutes 233 (1975). The term
may also denote an interchangeability of the linked terms as equivalents, such as in the
phrase "a cabin or cottage sits on the hill." Fundamentals of Legal Drafting, supra

§ 6.2, at 76 n.6. Evidence that the drafters may have used the term in this third sense
is illustrated by looking at the whole subject clause of section twelve: "a subrogation

claim or other lien or claim." If the latter use of "claim" is not linked to "lien" as an

equivalent term, the clause is rendered redundant since the general word "claim" could

have made the subject clause complete without enumerating "subrogation claim." Removing
the words "lien or" demonstrates this; the phrase would then be "subrogation claim or

other claim"—the whole class of "claims" could be captured simply by using the unmodified
term. The drafter has done just that in the predicate clause of the section, and no good

reason for assuming an intended redundancy is apparent. If redundancy is to be avoided,

then what appears to have been a three-item enumeration of (1) subrogation claim, (2)
lien, and (3) claim, may be taken as a simple two item enumeration: (1) subrogation
claim, and (2) the unitary concept of lien or claim.

The trouble with attempting to make sense of the clause in this line of analysis is
that it sets up to a triple dilemma. In order to conclude that "lien or claim" is to be

treated as a unitary concept so that a $10,000 lien/claim will be reduced in the same

amount as a $10,000 subrogation right/claim, the statute must be taken to be in violation

of sound drafting and interpretation principles. At the same time, if the unitary concept

of lien/claim is taken to be intended by the phrase "lien or claim" in the subject clause,

the same phrase in the predicate clause can be construed in a like manner and the first

item in the two-item enumeration would disappear from the predicate clause. To reject
this construction and assume that drafting convention has been followed and "or" means

either lien or claim or both exposes the subject and predicate clause of section twelve to

the logical argument that even if both the lien and the contractual claim are to be

diminished, the statute does not say that they shall be diminished as if a single amount.

By failing to directly state that the obligations secured by liens and asserted in claims

against the injured party shall be diminished, section twelve may have struck wide of its
intended mark.

^^'See supra note 280 for discussion of the possibility that "claim" and "lien" may
not be so independent.



750 INDIANA LAW REVIEW [Vol. 17:687

claimant's contributory fault, but does not bar recovery except as pro-

vided in section 4 of this chapter. '^^ The substantive section which states

the "greater than 50%" rule provides in part that "the claimant is
barred from recovery if his contributory fault is greater than the fault

of all persons whose fault proximately contributed to the claimant's

damages. "-^^'' Throughout the Act, the injured party is referred to as

"the claimant." In this context, the assertion that someone has caused

an injury through fault together with the consequent demand for money
damages for those tortious injuries constitutes a "claim." Consistent

with the approach of section twelve, the apportionment effect of the

Act might have been stated as a diminution or bar of a claim. The

legislature chose, however, to express directly both the operation of the

statute and the subject of that operation; the amount awarded as
compensatory damages is reduced or the recovery is barred, leaving no

doubt of the effect of those provisions and the subjects to be affected.

It is unfortunate that similar specificity was not employed in section

twelve.

In the case of claims, practicalities may again work to prevent serious
problems from arising. So long as a claim satisfies the contemplated

case of the statute, ^^^ absent some vehicle besides a "claim" with which

to assert the underlying obligation and demand payment, the provider
seems compelled to accept the diminished value of the claim as final

satisfaction. One definition of "claim" is "right of recovery. "^^^ If
section twelve is read to say that rights of recovery are diminished, all

avenues of escape from the operation of the section would appear to

be closed for claims.

However, the significance of another phrase in section twelve becomes

important in connection with a claim. The claim must also "[exist] in

respect to a claim for personal injuries or death. "^^^ Absent that cir-

cumstance, the claim would be outside the subject of section twelve's

diminution effect, even if the holder of the claim asserted it only after

the injured party had received sufficient funds from a tort judgment to

satisfy the claim. No case on point has been found in Indiana, but it
is entirely plausible that an express or implied contractual claim for

medical services and supplies conferred upon an injured party could

^«^lND. Code § 34-4-33-3.

^"M § 34-4-33-4(a), (b).
^*^The terms "case of the statute" refer to the generalized set of facts which occasion

the operation of the statute, as contrasted with the common law attorney's notion of a
"case" as a specific set of allegations comprising a dispute. See F. Horack, Cases and

Materials on Legislation 571 (2nd ed. 1954); Kennedy, Legislative Bill Drafting, 31

Minn. L. Rev. 103, 111 (1946).

^'Black's Law Dictionary 224 (rev. 5th ed. 1979). See supra note 264.
^«^lND. Code § 34-4-33-12.



1984] FIRST GLANCE 751

arise which could fairly be said to exist wholly independently of the

injured party's tort action. ^^^

Little legal difference lies between a physician who renders ser-
vices to an injured party, a hospital that does so, or an insurer that pays

for those services, in terms of the obligation of the injured party to

reimburse the provider for the value of the services. Yet, nothing inherent

in the implied agreement between the injured party and the physician

suggests a necessary connection to or dependence upon some inchoate

tort action that may or may not arise in the future between the injured
party and the person who caused the injury. In contrast to the nature
of liens and subrogation rights, which are in large part closely related

if not dependent upon the personal injury action and the "fund" which

is generated by judgment in that action, a claim and its underlying

obligation in this context are independent of the adjustment of rights

between the injured party and tortfeasor. Once again, the indirectness

of section twelve's language may have failed to reach the true subject
of the legal predicate of the enactment.

5. Workers' Compensation Liens.—Section twelve specifically ex-
cepts workers' compensation^^^ and occupational disease^^^ liens and

subrogation rights from its operation. ^^° Liens and subrogation rights

arising from workplace injuries and diseases^^' present special issues not

present in other settings because the worker's employer may have been
partially at fault in producing the disability.

As originally enacted, the Comparative Fault Act addressed neither
the matter of how the employer's fault was to be treated in apportionment
decisions, if at all, nor how the employer's lien and subrogation rights
were to be affected by that apportionment.^^^ As a result, difficult issues
lurked in the Act concerning the worker's ability to obtain adequate

compensation. Two features of tort litigation for workplace injuries
under comparative fault combined to produce potential problems: (1)
the exclusivity of workers' compensation as a remedy against the em-

ployer, and (2) the Act's requirement that jurors assess the "fault" of

^^'See, e.g., Cotnam v. Wisdom, 83 Ark. 601, 104 S.W. 164 (1907) (the court held
that a physician was entitled to recover for the reasonable value of his services when

conferred upon the victim of an accident). Cf. In re Davis, 132 Misc. 811, 231 N.Y.S.

4 (1928) (disagreeing with the Cotnam court on the issue of whether the jury could
consider the obligor's ability to pay as a factor in determining reasonableness of the

obligation).

^^^The statute conferring the lien and subrogation rights for benefits paid for accidental

injuries is Indiana Code section 22-3-2-13 (1982).
^*'Liens and subrogation rights in the case of payments for occupational disease are

created by Indiana Code section 22-3-7-36 (1982).
^^Ind. Code § 34-4-33-12.

^^'For the sake of brevity, both the workers' compensation and occupational disease

provisions will be referred to solely as workers' compensation in the remainder of this

discussion.

^'^^See Act of Apr. 21, 1983, Pub. L. No. 317-1983, 1983 Ind. Acts 1930.



752 INDIANA LAW REVIEW [Vol. 17:687

persons not named in the tort action. The exclusive remedy of the

workers' compensation statutes prevents an injured worker from naming

even a culpable employer as a defendant in a tort action against a third

party for an injury suffered in the workplace. ^''^ Under the original

Comparative Fault Act, this did not foreclose the jury from assessing

the "fault" of the nonpresent employer as a part of the "total fault"

contributing to the injury. ^'^'^ Consequently, a worker injured by the

combined fault of the employer and a third party would have had to

bear the economic burden of the employer's culpability since his recovery

would be reduced in proportion to the nonparty employer's "fault."

For example, if the worker's total damages before adjustment were

$100,000, the employer's "fault" was assessed at 15%, and the third

party's "fault" was assessed at 85%, the worker's verdict would be for

$85,000 against the third party.

Furthermore, the statutory rights to reimbursement permit the em-

ployer to recover "the amount of compensation paid to the employee

or dependents, plus the medical, surgical, hospital and nurses' services

and supplies and burial expenses"^^^ paid to the employee, less the

employer's share of litigation expenses. Under the Act's original language,

if the employer had paid $10,000 in such benefits and expenses, the

worker's recovery would be reduced by that $10,000 (less expenses) to

discharge the employee's obligation to the employer and the right to

future worker's compensation benefits would be extinguished. ^^^ For his

$100,000 injury, the worker's net compensation resources would fall

short of full recovery by approximately $15,000.

The amended Act solves the problem by excluding employers from

the "nonparty" classification, ^^^ and by permitting the employer to obtain

reimbursement undiminished by the worker's assessed "fault. "^^^ Thus,

in the hypothetical situation above, even though the worker's employer

was at fault, the defendant named in the tort action is prohibited from
asserting that fault as a partial defense. The defendant's "fault" would
be assessed at 100% and the plaintiff's verdict would be for the full
$100,000. The employer would then be entitled to reimbursement of the

$10,000 workers' compensation benefits and medical expenses paid. Hav-

ing received a total of $110,000 in compensation resources but being

required to disburse $10,000 back to the employer, the worker's net

compensation would equal full damages.

^^'iND. Code §§ 22-3-2-6, 22-3-7-6.
"\See Act of Apr. 21, 1983, Pub. L. No. 317-1983 Sec. 1, § 5, 1983 Ind. Acts 1930,

1931-32. (codified at Ind. Code § 34-4-33-5 (Supp. 1984)).
^"^ND. Code §§ 22-3-2-13, 22-3-7-36.

^'^Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 1, § 2(a), 1984 Ind. Acts 1468,

1468-69 (amending Ind. Code § 34-4-33-2(a)).
^^^Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 7, § 12, 1984 Ind. Acts 1468,

1472-73 (adding Ind. Code § 34-4-33-12).



1984] FIRST GLANCE 753

In the case of a worker partially at fault, the system works to

prevent overcompensation. If, for example, a worker sustaining a $1(XJ,(XX)

injury had been found 15% at "fault," his verdict against the defendant
in the tort action would be for $85,000. If the employer had paid $10,000

in workers' compensation benefits and his right to reimbursement was

treated in the same way as other liens and claims under section twelve,
the employer would be entitled to recover only $8,500 (less expenses)

and the worker's net compensation would be $1,500 greater than he

would be entitled to recover under the apportionment of fault principle.

From one perspective, this system seems overly protective of the
interest of employers who have been partially at fault in bringing about
the worker's injury. In a case where all three actors contribute some

fault to the incident, for example, the only party who is not made to
bear its ultimate share of economic responsibility for faulty conduct is

the employer. From the perspective of the workers' compensation system,
however, the effect may be justified as a matter of policy.

One policy justification is to avoid the difficult matter of meshing
the nonfault system governing compensation for workplace injuries with

the comparative fault system. If employers were to be made subject to
suit in situations where third party defendants also contributed to the

harm, for example, much of the delicate balance of interests obtained
in the workers' compensation system would be lost, and employers'

incentive to participate in the system would be reduced. -^^ Employers

have been required to bear the direct economic burden of the workers'

compensation system partially in return for immunity from tort liabihty

to injured workers. If they were required to appear and defend in actions

where third party defendants were allegedly responsible, employers could

argue that, at least with respect to this class of cases, some of the
efficiencies of the workers' compensation system would be lost at their

expense. An incentive to bring third party actions naming employers as
defendants might arise because workers' compensation benefits do not

even pretend to be full compensation for the worker's injuries. These

conflicting incentives would create a tension between the fault and

nonfault systems which would not be healthy for either system.

^'^This is not to suggest that the workers' compensation system is dependent upon

employer incentive. Participation is compulsory for quaHfied employers. Ind. Code §§
22-3-2-2, 22-3-7-2 (1982). However, compulsory compliance does not produce full com-

pliance. Workers' compensation statutes were recently amended to bolster enforcement

powers and sanctions in response to increasing incidences of employers flaunting the

statute's requirements for coverage. Act of Feb. 24, 1982, Pub. L. No. 135-1982, 1982

Ind. Acts 1034 (amending Ind. Code §§ 22-3-4-13, 22-3-7-34). Those measures may have

solved some of the problems of nonparticipation; they are not at work in some employers'

decisions about participation. Nor would those provisions relieve tensions that might build

up which would produce pressure for comprehensive modification of the system should

employers be made vulnerable to fault liability in some settings.



754 INDIANA LAW REVIEW [Vol. 17:687

If the employer is excluded from the tort action but the employer's

fault is nevertheless taken into account, the potential for either over-

compensating or undercompensating the injured worker looms large. The
benefits payable under the workers' compensation system are not de-

termined by reference to fault, and the employer's proportion of "fault"

in the tort action may not precisely match the amount of compensation
paid under the workers' compensation benefit formulas and schedules.

One illustration of overcompensation has already been given. On the
other hand, if a worker suffering a $100,000 injury received workers'

compensation benefits and medical expenses totalling $10,000 and the

employer's "fault" was later assessed at 20%, undercompensation by
approximately $10,000 would result.

Another policy consideration favoring section twelve's exceptions

relates to the principle of fairness in allocating the benefits and burdens

of the system. Since the economic vitality of the workers' compensation

system is dependent upon employers' contributions^^^ to the compensation

pool, either through payment of insurance premiums or self-insurance,

a policy based upon fairness might well justify excluding the employer

from accountability for some incidents of faulty conduct. The probability

that most employers will eventually be required to finance payment of

compensation benefits and medical expenses in more instances where
they are not at fault than where they are at fault might be viewed as

an adequate quid pro quo for permitting the occasional faulty employer

to escape accountability. The third party defendant does not have the
same claim for equitable balancing of the financial impact of a workplace

injury. The third party has not contributed at all to the compensation

resources. ^°' The worker, not having contributed to the compensation

resource pool up to the point of injury, is in a weaker position than

the employer for disavowing accountability in the ultimate allocation of

'"'Employees indirectly contribute to the economic balance of the system by foregoing

full compensation for their injuries in return for the surer and more efficient payment

of benefits. Since the issues addressed here arise only in the context of situations where

the injured worker also has a third party defendant to look for compensation, the economic

burden upon such workers is not implicated.

'"'If fairness is of prime concern, the interests of the third party defendant who must
ultimately bear the cost of the employer's fault must be carefully considered. Where the

third party's fault is significantly less than the employer's but that defendant is made to

bear 100% of the worker's damages, the issue is acute. Unfortunately, if such defendants

are permitted to reduce their liability by forcing the worker to accept a verdict apportioned

to the "fault" of the employer, the compensation function of the comparative fault system

would be undermined. If they are permitted to reduce their liability by obtaining reim-

bursement from the employer in proportion to the employer's "fault," the nonfault basis

of the workers' compensation system would be undermined. Given the worker's injury

and the employer's contributions to the workers' compensation system, the equities favor

the worker, the employer, and the third party defendant, in that order. If fairness follows

equity, the Act has struck the correct balance.



1984] FIRST GLANCE 755

compensation. He also has a choice whether to substitute tort compen-
sation for workers' compensation, ^"^ and it is consistent with the fairness

principle to require that a choice of the former releases the employer

from financial burden. As between the worker and the third party

defendant, even where both are at fault, the issue of which of them

more fairly bears the financial burden of the employer's fault is easily

answered in favor of the party who has been injured. If the third party
has also been injured, the matter is much more complicated, but the
injured third party's interest in compensation is not jeopardized by the

operation of section twelve. ^^^

When the injured worker chooses workers' compensation over suing
the third party, the workers' compensation statutes confer upon employers

the right to pursue reimbursement for benefits and expenses against the

tortfeasor. ^^"^ In such a case, section twelve is not invoked and the

^°^lND. Code §§ 22-3-2-13, 22-3-7-13.
3°^In such a case, the court should consider bifurcating the trial, treating the injured

worker's action against the third party separately from the third party's action against

the worker and the employer because while the employer may not be treated as a "nonparty"
in the worker's suit against the third party, no such restriction is imposed in the third

party's suit against the worker. Since keeping the employer out of the case in the third

party's action while allowing the assessment of the employer's "fault" would put the

burden of reduced recovery upon the injured third party, the third party should be

permitted to name the employer as defendant. On the other hand, since bringing the
employer into the worker's case would be contrary to and would thwart the objectives

of section twelve's design, the worker should be permitted to keep the employer out of

his case. Having the employer in the case for one party and out of the case for the other

might prove to be overwhelming for the jury. Bifurcating the trial with careful guidance

supplied to the jury would ease the difficulty. As an example of what might result,

consider worker {W) with a $100,000 injury and a third party (3P) with a similar injury.

The employer {E) has paid W $10,000 in benefits and expenses. Starting with trial one,
Ws action, and assuming that Ws "fault" is assessed at 40%, Ws verdict would be
for $60,000 against 3P. Assuming further that W reimburses E for the $10,000, his net
recovery is $60,000. In trial two, E appears and defends, and 3P is entitled to have E's
"fault" apportioned. Assuming an assessment is returned by the jury that E is 20°/o and
3P is 40% at "fault," verdicts in favor of 3P would then be entered against W for
$40,000 and against E for $20,000, for a net recovery of $60,000. It is much easier to
describe such an outcome in the abstract than actually to try to bring it about, of course,

but it is entirely plausible that both injured parties can recover fully, commensurate with

comparative fault principles. A court may want to consider conducting the trial in the
order illustrated above, with the jury first considering the worker's "fault," because having

the jury assess the employer's and the third party's shares of "fault" first may inject an
element of prejudice into the worker's segment of the case which sections one and twelve

try to avoid. Because each case will present different requirements for avoiding such

prejudicial carryover from one determination to the other, the court should consider with

care which segment to try first. It should be noted that set-off between the parties is

assumed to be no problem in this illustration. It would be an issue, however, and the

issue in a more general context is considered in a separate section of this article. See

infra notes AA9-6A.

'o^lND. Code §§ 22-3-2-13, 22-3-7-36.



"56 INDIANA LAW REVIEW [Vol. 17:687

subrogated employer should be subject to any defense which could be

raised by the tortfeasor against the worker's action.''^-'' That would mean
that the worker's fault could be asserted as a "nonparty" defense, but

it is not clear that the employer's fault could be asserted. If the employer

"stands in the shoes" of the worker and the action is viewed as no

more than a derivative action, logic would compel the conclusion that
since the third party could not assert the employer's fault against the

worker, that defense should be excluded in the employer's action. On
the other hand, viewing the employer as a substituted real party in

interest where the interests of the worker are not actually at stake in

the action, because of the Umited nature of the reimbursement remedy

sought, would compel a different conclusion. Since the worker's action

is not being asserted, this point of view demands that the third party

should be able to raise the employer's own fault as a defense.
Should the courts diminish the employer's reimbursement remedy

against the tortfeasor, they should carefully consider whether it is good

policy to have a system which treats employers' rights to reimbursement

differently depending on whether the worker or the employer asserts the

claim. If an employer is entitled to full reimbursement when the worker
asserts his tort action against the third party, but is entitled only to

diminished reimbursement when he presses his subrogation claims in-
dependently, economic forces which have not figured in the system before

come into play and should be given close scrutiny. The courts considering

the issue should take into account whether the economics of full versus

partial reimbursement would be of sufficient magnitude to induce em-

ployers in cases of this nature to encourage their workers to foresake

certain workers' compensation benefits for the less certain tort recovery.

It would seem that the greater the fault contributed by the employer

in producing the injury, the greater the inducement to avoid asserting

a reimbursement claim subject to a fault defense.

III. Comparative Fault and Assumed/Incurred Risk

A. Introduction and Background

The Indiana Act's definition of "fault" includes an "unreasonable

assumption of risk not constituting an enforceable express consent" and

"incurred risk." As will be seen in this discussion, it is not entirely
clear what the General Assembly intended by its choice of language,

but it is at least certain that in some circumstances where the common
law would have barred recovery, assumption of risk and incurred risk

are to be treated as comparative "fault" and the damages are to be

apportioned. Dean Prosser has said that the doctrine of assumption of

risk

^^^See 16 Couch on Insurance 2d, supra note 244, § 61:212.



1984] FIRST GLANCE 757

has been a subject of much controversy, and has been surrounded
by much confusion because "assumption of risk" has been used
by the courts in several different senses, which have been lumped

together under the one name, usually without realizing that any

differences exist, and certainly with no effort to make them
clear. ^0^

Within the Hmited scope of this Article no attempt will be made to
unravel the confusion, even assuming that it would be possible to do

so. But some excursion into the murky depths of this area of the law
must be made in order to appreciate how the Comparative Fault Act
might operate in appropriate cases, and to raise some of the issues which

the legislature's choice of language presents.

As a starting point, some description of the several senses of assumed

and incurred risk may be helpful. Part of the confusion about assumption
of risk resides in the facts that the defense applies to a wide spectrum

of plaintiffs' conduct and, depending upon the kind of conduct involved,

operates to relieve the defendant of liability in significantly different

ways. The complexity inherent in the several theoretical and practical

aspects of the defense has made it necessary to employ a sort of shorthand
terminology for easy reference to these different aspects. A brief de-
scription of the concepts behind the shorthand terms, such as "primary"

and "secondary" assumption of risk, will be set out here to facihtate

later discussion. "Assumption of risk," as a general proposition, pertains

to the defensive theory that a plaintiff who knew and appreciated a
risk of injury to himself, and who voluntarily encountered that risk,
should not be heard to complain that the defendant should be answerable

for any injuries resulting from the forces which created that risk.^^"^

When successfully employed, the defense totally bars a plaintiff's re-
covery. In some jurisdictions, like Indiana, the phrase "assumption of

risk" pertains only to cases in which there has been some contractual

relationship between the parties. The defense is called "incurred risk"
when no contractual relationship is present. Indiana case law is not clear
on the point, but it appears that the defenses are identical in all other

respects^°^ and the discussion here will frequently refer to them collectively

as "assumption of risk defenses." In a case where a plaintiff affirmatively

states his intention to take on the risk as part of his responsibility, the

^°^W. Prosser, Handbook on the Law of Torts § 68, at 439 (4th ed. 1971) (footnotes
omitted).

^^''See generally, 2 F. Harper & F. James, The Law of Torts § 21.1, at 1162 passim
(1956); W. Prosser, supra note 306, § 68 passim.

^**The Indiana Court of Appeals has presumed, without deciding, that the two defenses

are essentially identical. Kroger Co. v. Haun, 177 Ind. App. 403, 408 n.2, 379 N.E.2d

1004, 1008 n.2 (1978).



758 INDIANA LAW REVIEW [Vol. 17:687

defense is spoken of as an "express" assumption of risk.^^^ Where no
affirmative conduct can be taken as an expression of an agreement to

assume the risk, a plaintiff nevertheless may have exhibited conduct
from which the courts may infer that agreement. In such a case, a
plaintiff will be said to have "impliedly" assumed the risk.-^'^

The defenses have also been employed in other senses. Professors

Harper and James have developed a classification of assumption of risk

focusing upon the relationship between the plaintiff's and the defendant's

conduct. If, in advance of the defendant's conduct, the plaintiff did

something to relieve the defendant of a duty to protect the plaintiff

from the risk and took on the responsibility for possible injury from

that risk, courts adhering to Harper and James' classification would say

that the plaintiff assumed the risk in the "primary" sense. ^•' In its

"secondary" sense, assumption of risk means that the defendant has

already negligently set an injurious force in motion, and the plaintiff

accepts the risks attendant upon that force. Harper and James assert

that the assumption of risk bar operates in "secondary" assumed risk

cases only where the plaintiff's acceptance of the risk was unreasonable

as tested by the circumstances. They consider this segment of the defense

to be a "form of contributory negligence. "^'^

This idea of an "overlap" between the assumption of risk defenses

and contributory negligence has been another source of confusion and

discontent in the case law, as Dean Prosser's comment has pointed out.
In the abstract, it may be presumed that there are some risks of harm
that the reasonably prudent person would not voluntarily take. In every

risk-encountering act the theoretical possibility therefore exists that the

actor could be found to have acted contrary to the reasonably prudent

person standard. If that act culminated in injury to the actor, the claim

against the person who created or maintained the risk is subject to a
defensive plea that the actor negligently contributed to his own injury
by unreasonably assuming the risk. In such a case, it makes no difference

in a negligence system whether the action is barred for the assumption

of the risk or contributory negligence. The matter of a reasonably assumed

"risk presents much more difficult pragmatic and theoretical issues. If
the Harper and James analysis is adhered to, and the reasonable as-

sumption of risk is of the "secondary" type, the plaintiff's action will

not be barred. ^'^ The logic supporting this conclusion is that since

^'^2 F. Harper & F. James, supra note 307, § 21.6, at 1184-89; W. Prosser, supra
note 306, § 68, at 442-45.

'"'2 F. Harper & F. James, supra note 307, § 21.6, at 1184-85; W. Prosser, supra
note 306, § 68, at 445-47.

'"2 F. Harper & F. James, supra note 307, § 21.1, at 1162-68.
'^'Id. at 1162.

'"Meislrich v. Casino Arena Attractions, 31 N.J. 44, 155 A.2d 90 (1959) is a leading

case. See also Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977); Parker v. Redden, 421

S.W.2d 586 (Ky. 1967); Felger v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965);



1984] FIRST GLANCE 759

''secondary" assumption of risk is a form of contributory negligence,

to reasonably assume a risk is to act in accordance with the standard

of care. If, however, the risk had been reasonably assumed in the

"primary" sense, the plaintiff's action would nevertheless be barred on

the logic that the only relevant inquiry is whether the plaintiff's act had

relieved the defendant of the duty of care toward the plaintiff. Since

the plaintiff's fault in assuming the risk is not the basis for his ac-

countability, the reasonableness of that assumption has no bearing upon

the applicability of the defense. Furthermore, it is theoretically possible

to acknowledge an "overlap" and pragmatic similarity between the

assumed risk and contributory negligence defenses without accepting

Harper and James' idea of an interdependent mixture of the two. If

the assumed risk defense in all of its various senses is considered to be

a defense not based upon fault, the reasonableness of the plaintiff's

encounter with and acceptance of the risk is irrelevant. Under this

nonfault view, a plaintiff would be barred for having taken the risk

upon himself regardless of whether he had acted in accordance with the
standard of ordinary care.

When the traditional negligence system is abandoned in favor of a
comparative fault system and the latter system purports to incorporate

the assumed risk defenses, some important issues about how those
defenses are to operate in the new system are immediately suggested:

(1) Since fault is the watchword in the comparative system,

how are the nonfault aspects of the assumption of risk
defenses to be treated?

(a) Is the adoption of comparative fault to be considered

a total merger of the assumption of risk defenses with

fault defenses by either:

(i) somehow translating the nonfault aspects of the
defenses into "fault" for comparative purposes,

or

(ii) abolishing all nonfault senses of the defenses?

(b) Or, are the nonfault aspects of the defenses to remain

intact and outside the comparative system as complete

bars to plaintiffs' action?

(2) How much can and should the common law concepts of
the assumption of risk defenses affect the answer to the

first issue and its subissues?

These issues are the focus of this part of the Article.

As will be seen, obtaining answers to these issues is not simply a

Armstrong v. Mailand, 284 N.W.2d 343 (Minn. 1979); Bolduc v. Grain, 104 N.H. 163,
181 A.2d 641 (1962); Sandford v. Chevrolet Div. of General Motors, 292 Or. 590. 642

P. 2d 624 (1982) (excellent general discussion where comparative negligence statute abolished

"implied" assumption of risk.).



760 INDIANA LAW REVIEW [Vol. 17:687

matter of reading the words of the Comparative Fauh Act. Two back-
ground elements figure importantly in the interpretation of that language:

(1) the General Assembly's heavy reliance upon the Uniform Comparative
Fault Act's definition of "fault," and (2) the Indiana case law devel-
opment of the assumption of risk defenses. Both of those background
elements will be examined in detail. That examination will reveal some
conceptual gaps between comparative fault and the assumption of risk
defenses which were not closed by the General Assembly.

The language chosen by the General Assembly is susceptible of

conflicting interpretations because of its conceptual gaps. This discussion

will explore those interpretations and the possible theoretical, functional,

and policy-oriented issues they raise, to show that the legislature has

failed to speak with sufficient precision to ensure trouble-free application

of the apportionment principle in tort litigation involving assumption

of risk defenses.

B. "Reasonable" and "Unreasonable" Assumption of Risk Under

the Uniform Act

To fully appreciate the effect the Indiana Act imposes upon as-
sumption of risk defenses, it is helpful to consider the approach of the

Commissioners on Uniform State Laws. Because the Uniform Act is

simpler and is accompanied by explanatory commentary, it can provide

an anchoring point for the consideration of the more complex issues

the Indiana Act poses.

The Uniform Act, like the Indiana Act, includes in its definition

of "fault" the acts of a claimant amounting to an "unreasonable

assumption of risk not constituting an enforceable express consent."

Risk-assuming conduct becomes "faulty" conduct by virtue of the mod-

ifier "unreasonable." By implication, a plaintiff would not be subject
to apportionment of fault so long as his assumption of risk was not

"unreasonable." The definition fails to address, and thereby fails to

incorporate into comparative fault, conduct in which the plaintiff en-

countered and accepted a known and appreciated risk, and did so under
circumstances a trier of fact would find reasonable. Only that part of

assumption of risk that "overlaps" with contributory negligence triggers

apportionment, and the commissioners' commentary accompanying the

section clearly shows that the definition was intended to operate that

way. 3"*

The Uniform Act's "unreasonable assumption of risk" in essence

incorporates into comparative fault the "secondary" sense of that defense

as articulated by Professors Harper and James. That is, the plaintiff

^"*Unif. Comparative Fault Act, 12 U.L.A. 35, 37-38 (Supp. 1984) [hereinafter

cited as Uniform Act],



1984] FIRST GLANCE 761

will be subject to a reduction of damages where he has encountered a

risk associated with the defendant's activity, and ran that risk in a

manner which, in the view of the circumstances, a trier of fact would

deem below the standard of reasonableness. In the ordinary case, the

assumption of risk elements of knowledge, appreciation, and voluntary

encounter of the risk are usually so inextricably mixed with and part

of the plaintiff's substandard conduct that practical separation of the

plaintiff's assumption of risk and contributory negligence is impossible.

In order to attach legal significance to the risk-assuming character of

the plaintiff's conduct, it is meaningful in such circumstances to speak

of the defense only by shifting from an evaluation of the subjective

presence of the essential elements to an evaluation which objectively

attaches those elements to the circumstances. The case is likely to present

a plaintiff who has not subjectively known or appreciated the risk. If
that is true, naturally he will not have expressed an intention to take

responsibility for the risk. The legal evaluation of his conduct necessarily

concentrates upon the deed which brings him into injurious involvement

with the risk. It may be that only by acutely distorting the meaning of
the term "responsibility" can such a plaintiff's behavior be said to have

evidenced an intent to be responsible for anything, much less a risk of
injury. In such a case, the basis of accountability in assumption of risk

can be satisfied only by evaluating the plaintiff's behavior against the

standard of reasonableness. The conclusions of such an evaluation might

be that the plaintiff's conduct was so unreasonable that even though

he did not subjectively know or appreciate the risk, he should have;
that even though he did not subjectively agree to accept the consequences

he should not, as a matter of objective poHcy, be heard to say that he

did not.

This objective theory of "unreasonable" ("secondary") assumption

of risk^'5 is so dependent upon the reasonable person standard for
establishing the general elements of the defense that the defendant prag-

matically cannot satisfy the predicates of the defense without referring

to the faultiness of the plaintiff's acts. The close, dependent relationship
between "unreasonable" assumption of risk and fault is demonstrated
in the commissioners' official commentary to the Uniform Act, where
the commissioners state that "unreasonable assumption of risk . . . does

not include . . . reasonable assumption of risk (which is not fault and

should not have the effect of barring recovery). "^'^ Experience with

^"It is also "implied" assumption of risk, but for the sake of clarity, that sense of

the defense is ignored here. It is addressed in the discussion accompanying notes 330-38,

infra.

^'^Uniform Act, supra note 314, at 38. The specific significance of this portion of

the commissioners' comments is discussed in more detail later in this discussion in the

text accompanying note 338, infra.



762 INDIANA LAW REVIEW [Vol. 17:687

cases of this sort has led some courts to blend "secondary" assumption

of risk into a unitary contributory negligence defense. ^'^

If this unitary concept of the two defenses is what the drafters of

the Uniform and Indiana Acts contemplated, then it is not only sensible

to permit a defendant to invoke the apportionment principle when a
plaintiff "unreasonably" assumes the risk, it is sensible to deny ap-

portionment when a plaintiff is reasonable. Since, in circumstances calling

for the objective theory, the elements of assumed risk are so closely

tied to the evaluation of the social acceptability of a plaintiff's actions,

then when those actions are deemed reasonable by the trier of fact it

can be said that the defendant has failed to satisfy the threshold of

"fault" necessary to trigger the apportionment principle. Professors

Harper and James might say that to be accurate, it should not be said

that the plaintiff has "reasonably assumed the risk," but rather that

because the plaintiff has acted reasonably, he has not assumed the risk.^'^

However, cases where the plaintiff has acted reasonably in the face

of a known danger and in which the courts have nevertheless held that
the plaintiff may not recover for having assumed the risk present some
difficulty in reconciling practice with theory. ^'^ If these cases represent

a segment of "reasonable" assumption of risk not affected by the

definition of comparative "fault" here being examined, they pose the

possible dilemma of some plaintiffs being totally barred for reasonable

conduct while others are able to benefit from apportionment if their

acts were "unreasonable." This proposition may cause some to recoil
if it is thought to mean that a wrongdoer may escape liability altogether
if her victim was acting in a socially acceptable manner regarding the
risks posed by the defendant's socially unacceptable behavior.

The dilemma is escaped by employing the "primary" sense of as-

sumption of risk. Professors Harper and James explain the meaning of

this sense of the defense as "only the counterpart of the defendant's

lack of duty to protect the plaintiff from that risk. In such a case

plaintiff may not recover for his injury even though he was quite
reasonable in encountering the risk that caused it."^^^ If this concept is

permitted to control and the defendant successfully shows that the

plaintiff's knowing, voluntary acceptance of the risk has the effect of

relieving the defendant of a duty, the fundamental principle of the

defense will have been discharged. The plaintiff will have taken the

responsibility for the potential injury and none remains with the de-

fendant. Here, the legal significance of the distinctions residing in the

^'6'ee authorities cited supra note 313.

""S^e 2 F. Harper & F. James, supra note 307, § 21.1, at 1162, and § 21.8, at
1191.

^''^See 2 F. Harper & F. James, supra note 307, § 21.1 at 1163-64 for cases of this
sort, and the authorities cited at 1162 n.2. W. Prosser, supra note 306, at 440 n.l8 cites
several others.

^^'2 F. Harper & F. James, supra note 307, § 21.1, at 1162 (footnote omitted).



1984] FIRST GLANCE 763

terms "secondary" and "primary" become extremely important for

ascertaining the ultimate place the assumption of risk defenses will occupy

in a comparative fault system. In "secondary" assumption of risk, the

plaintiff's conduct, like the defendant's, is socially unacceptable, and

all of the same considerations which arise in a contributory negligence

setting concerning the propriety of putting the entire burden of the injury

upon the plaintiff are implicated. In a "primary" assumption of risk

case, however, the fault basis for imposing liability disappears from the

case altogether. Prosser explains that the plaintiff's cause of action fails

under such circumstances "because as to him the defendant's conduct

is not a legal wrong. "^^' In such a case, the reasonableness of the risk

and the reasonableness of the plaintiff's conduct in relation to it have

no bearing upon the issue of accountability for the injury. The plaintiff

may well have acted in a socially acceptable manner, but if, in so doing,
he has removed responsibility from the realm of the defendant's duty

and placed it entirely within his own control, he no longer has a claim
against the defendant. It does not, as might appear from superficial

analysis, involve a guilty defendant escaping Hability to a "reasonable"

plaintiff. Unless the statute or decision adopting comparative fault spe-

cifically transforms the assumption of risk defenses into something dif-

ferent from the concepts just developed, "primary" assumption of risk

should have the same effect under a comparative fault system as under

the traditional contributory negligence system.

The comments accompanying the Uniform Act's definition indicate
that the commissioners did not intend to modify "primary" assumption

of risk to permit that defense to invoke the apportionment principle.

In attempting to explain what was meant by "unreasonable assumption

of risk," the commissioners spelled out some ideas about what the
defense did not include, one of which was "a lack of violation of duty
by the defendant (as in the failure of a landowner to warn a licensee
of a patent danger on the premises). "^^^ The parenthetical illustration
is one employed by Harper and James in their explication of the theory.--^

The trouble with the illustration is that it relates the simplest possible
circumstance: where at the outset the risk is not within the scope of

defendant's duty to plaintiff. A case which more significantly involves
the operation of the principle is where the defendant owes a duty of

care toward the plaintiff and the risk is initially within the scope of

that duty, but the plaintiff's actions remove it from that scope. Prosser

cites Hunn v. Windsor Hotel Co. ,^^^ a good example in which the plaintiff,

"'W. Prosser, supra note 306, § 68, at 440.

"^Uniform Act, supra note 314, at 38.
"^2 F. Harper & F. James, supra note 307, § 21.1, at 1164, and § 21.2, at 1168.
^2^119 W. Va. 215, 193 S.E. 57 (1937). See W. Prosser, supra note 306, § 68, at

446 n.71.



-64 INDIANA LAW REVIEW [Vol. 17:687

an invitee of the defendant, was injured when she stepped on a plank

the defendant had placed on the stairs to hold down a tread that was
being glued to the stairs. Plaintiff said she knew the plank was dangerous

because she had climbed the stairs earher and thought the plank might

move. Coming down, she stepped on it anyway, it moved, and she fell.
The court denied recovery, despite its recognition that the facts suggested

no negligence on her part, because she had assumed the risk.^^^ The

court did not employ the term "primary assumption of risk," nor did

it express the view that the defendant was relieved of his duty. Yet, the

principle behind the assumption of risk defense clearly explains the result.

The defendant owed a duty of care to keep the premises safe and to
warn of known or discoverable dangerous conditions. However, that
duty is relieved if the plaintiff otherwise knows of the danger, or if it

is obvious.''^ Here, the obviousness of the danger was in doubt, but

the plaintiff testified that she knew about it. Having run the risk of

injury resulting from that danger, responsibility for the injury shifted

from the defendant to the plaintiff. The commissioners' commentary

clearly indicates that "unreasonable" assumption of risk does not include

"primary" assumption of risk, and that facts similar to Hunn would
result in a total bar of the plaintiff's action.

The remainder of the definition and the commentary, however,

demonstrate that the intent of the commissioners is not at all clear

concerning the effect of comparative fault upon assumed risk defenses.
According to the definition, and a comment which essentially repeats
the phrase, the apportionment principle is not triggered by "a valid and

enforceable express consent. "^^^ Although it may appear at first to be
a concept misplaced in negligence law, the principle of consent can be

useful in appreciating the operation of assumption of risk defenses. ^^^

A look at consent properly shifts the focus of analysis of the defense
away from fault by permitting evaluation of the plaintiff's actions without

reference to whether those actions were "reasonable" or not. This

fundamental operation of consent can easily be seen in the more cus-
tomary setting of liability for intentional conduct. When a plaintiff
consents to an intentional invasion of his interests, tort law is not

concerned with whether his consent is fault-ridden. The law of consent

has to do only with whether the plaintiff has knowingly permitted the

invasion and has agreed to bear the consequences. If he has, the de-

fendant's conduct is not faulty because she was privileged to act in the

"-119 W. Va. at 219, 193 S.E. at 58.
'^See generally 2 F. Harper & F. James, supra note 307, § 21.2, at 1168-69; W.

Prosser, supra note 306, § 68, at 446; Restatement (Second) of Torts §§ 343, 343A,
496C (1965).

"'Uniform Act, supra note 314, § 1(b), at 36; id. comments at 37-38.

'"^See generally W. Prosser, supra note 306, § 68, at 439-40; H. Street, The Law
OF Torts 170-72 (1955).



1984] FIRST GLANCE 765

invasionary manner by virtue of the plaintiff's consent. The operation

of the assumed risk version of consent is similar to consent in an

intentional tort setting. ^^^ The important difference is that in assumption

of risk cases, the object of the consent is the risk, not the mvasion.

Because the object of the consent in the negligence setting is the

risk, and because the defense may be applied when the plaintiff's actions
show that he has only impliedly taken on the risk, the potential exists

for a great deal of confusion in the law dealing with situations where

plaintiffs have given no affirmative consent. In his treatise, Prosser

attributes the confusion to a failure to distinguish between voluntary

acts constituting consent to the risk and other voluntary encounters with

perceived dangers which do not amount to the requisite consent. "^^

However, since it is more than apparent that this distinction is the

ultimate question to be decided, the confusion must stem from the

application of the consent principle to a given set of facts rather than

residing in the result."' Prosser's favorite example illustrates the difficulty

well: the person who jaywalks into a busy street. Asserting that such
a person "certainly does not manifest consent that they [the drivers]

shall use no care and run him down,""^ Prosser concluded that the

person's actions were "certainly contributory negligence . . . not as-

sumption of risk.""^ The difficulty Hes in the necessity of satisfying the

consent principle only, if at all, by applying the "implied" sense of

assumption of risk, coupled with Prosser's own confusion regarding the
object of the consent. As Prosser observed,""^ to say that the jaywalker

"'See W. Prosser, supra note 306, § 68, at 440.

"°W. Prosser, supra note 306, § 68, at 445.

"'Prosser himself was a victim of the very confusion he lamented. He recognized
that the object of consent in assumed risk is different from that of consent to intentional

torts in an introductory statement: "The situation is . . . the same as where the plaintiff

consents to what would otherwise be an intentional tort, except that the consent is to

run the risk of unintended injury, to take a chance, rather than a matter of the greater

certainty of intended harm." Id. at 440. But deeper in his treatment of the topic it

becomes apparent that he failed to consistently adhere to that distinction as his discussion

progressed. The statement quoted here appears in connection with his attempt to lay out

his own classification of assumed risk defenses, which conforms roughly to Harper and
James' "primary-secondary" classification. Unfortunately, in the course of describing his

concept of the classes, he speaks of the consent as referring at different times to the

risk, to the defendant's negligence, and "to relieve defendant of the duty," without

acknowledging the changes. Id. As the discussion in the text demonstrates, it is a very

difficult proposition to accept at a common sense level that people accept and consent
to others being negligent toward them. Assumption of risk operates to relieve defendant

of a duty only if plaintiff knows, appreciates, and accepts the risk within the scope of

that duty. Prosser's treatment illustrates the limited usefulness of the consent concept as

an analytical tool. For the most part, "consent to the risk" is ultimately just another

way of saying "assumption of the risk."

"Vc?. at 445, 450.

'''Id. at 450.

''^Id. at 445.



766 INDIANA LAW REVIEW [Vol. 17:687

consented to the negligent invasion of his person does not conform to

common sense. The observation is hkely to be vaUd in the bulk of
"implied" assumed risk cases. The plaintiff's attitudes and intentions

concerning the drivers' actions in the jaywalking case are likely to be

the same as they would be if he were crossing with the light in the

crosswalk. He still expects those drivers to exercise care respecting pe-
destrians, but if it is remembered that the object of consent in assumed

risk is the risk rather than the invasion, it does not distort common
sense to conclude that the plaintiff has taken the risk upon himself.

Applying that common sense to the facts does require the evaluator to
shun the subjective elements of the assumed risk defense in favor of

an objective test of the plaintiff's conduct. In the crosswalk example

the plaintiff leaves the risk where he found it, within the scope of the

drivers' duty. His attitude and intentions about the drivers' duty are

likely to be the same as the jaywalker's—neither actually consents to
an invasion of his bodily integrity by the faulty conduct of the drivers.

But common sense, including notions of personal responsibility, engenders
a strong impulse to hold the jaywalking plaintiff accountable. It may
be possible to hold him accountable only by focusing upon his objective

behavior rather than his subjective intention, concluding that he took

the risk of injury upon himself and manifested his intention to be

responsible for that injury if it should occur.

The key is the necessity to apply the objective theory of "implied"

assumption of risk. The plaintiff probably has not, in a truly voluntary

exercise of intellect, decided to accept the consequences of the risk, but

he has acted in a way which society demands be undertaken only by
those who have accepted that responsibility. The plaintiff may not have
agreed to accept the risk, but society will not hear his complaint that

he did not. As with nearly all impositions of objective standards to a
person's frame of mind, a certain uneasiness about the conclusions

reached accompanies the application of those standards. Prosser indirectly

expressed that uneasiness through his efforts to characterize the example

as "contributory negligence, pure and simple.""^ That it is not, and

never will be. The plaintiff may well have been unreasonable in stepping
into the street. If he was, our negligence-dominated system of tort law

may more comfortably apply its objective standards to the plaintiff's
actions to impose accountability. Yet he may not have been unreasonable.
If the benefit he sought by crossing the street outweighed the risk, the

more comfortable contributory negligence basis of accountability dis-

appears. What is left is assumption of risk, not so pure, not so simple,
reasonably assumed, but assumed nevertheless.

In such a circumstance, considerations of fairness strain to pose the

questions: Why should a wrongdoer escape liability to one who reasonably
and only impliedly assumed the risk? In this "secondary" sense, the

'7^.



1984] FIRST GLANCE 767

defense is in the nature of the ancient pleading of excuse."'^ The defendant

is in effect arguing, "I confess I breached my duty to the plaintiff, but
the plaintiff acted as if he chose to accept responsibility for the injury,

and my actions or omissions should be excused." Nevertheless, there
are excuses and there are excuses. When the plaintiff has been engaged
in no wrongdoing himself, the excuse of "implied, secondary" assumption

of risk seems weak in our fault-dominated system of liability. The

Uniform Comparative Fault Act attempts to relieve the tensions produced

by mixing the nonfault basis of assumption of risk with the fault basis

of negligence by permitting the fact finder to conclude that such a

plaintiff is not at "fault."

Yet the Uniform Act's definition is confined to "implied" assumption

of risk cases. If the plaintiff's assumption of the risk "constitut[es] an

enforceable express consent," the apportionment feature of the Act is

not invoked. In effect, the definitional phrase addresses the problem of

attaching the relatively drastic legal effect of a complete bar to the

plaintiff's actions on a purely objective foundation. By excluding from

the Act situations where the plaintiff has clearly and affirmatively taken

the responsibility for the risk of injury, the commissioners have permitted

the total bar to operate only where the plaintiff's exercise of choice is

a matter of concrete fact provable by evidence which expresses the

plaintiff's state of mind. Where elements of knowledge, appreciation,
and voluntariness are dependent upon inferences to be drawn from

circumstances, the commissioners have permitted the fact finder to adjust

the right of recovery by applying the apportionment principle, and even

then only when those circumstances portray unreasonable conduct.
Problems in applying the Act's definition might arise in certain cases.

Consider the earlier fact situation of the invitee who stepped on the
plank on the stairs knowing the plank was dangerous. The plaintiff's

actions might well have been objectively unreasonable, and consent to

the risk, as is usually the case, was not expressed. Yet, even though it

seems that the definition of "fault" would apply, it should not. The

plaintiff's actions in a "primary" assumption of risk case have the effect

of relieving the defendant of a duty. The giving of the consent may
have been above or below the standard of reasonableness, but that

quality of the consent is irrelevant. The roots of assumption of risk in
the maxim volenti non fit injuria are strongest in the "primary" sense
of the defense. The defense is here in the nature of justification, and
if proved defeats the plaintiff's prima facie case."^ The apportionment

"^See Fletcher, Fairness and Utility in Tort Law, 85 Harv. L. Rev. 537, 558-60

(1972). See generally 2 F. Harper & F. James, supra, note 307, § 21.1, at 1162 and
authorities cited therein.

"^Here defendant argues in effect, "I am not liable to plaintiff because plaintiff
relieved me of responsibility for managing or eliminating the risk. My acts (or omissions)
were thereby justified and plaintiff has failed to show that I was at fault." See generally
authorities cited supra note 336.



768 INDIANA LAW REVIEW [Vol. 17:687

principle should not be applicable because the plaintiff has not estabUshed

a foundation of Uability upon which to rest a right to adjustment of

damages. There is, literally, no fault to be compared.

The commissioners attempted to address the "primary" assumption

of risk situation in the commentary by stating that "unreasonable as-
sumption of risk" does not include "a lack of a violation of a duty

by the defendant." This commentary, if permitted to guide the courts

in the application of the Indiana Act, will help avoid the potential for

error in requiring apportionment in a "primary" assumption of risk

case.

Even so, the possibility for confusion still lurks in the third com-

missioners' comment to the assumption of risk phrase. That comment
says that "unreasonable assumption of risk . . . does not include . .

. reasonable assumption of risk (which is not fault and should not have

the effect of barring recovery).""^ Removed from the context of the
other comments and given broad apphcability, the comment might be
taken to mean that all but "impHed, secondary, unreasonable" as-
sumption of risk is abohshed as a defense. As the foregoing discussion
has demonstrated, there is no neat separation of the various senses of

the assumption of risk defense. Both "primary" and "secondary" as-

sumption of risk may be "express" or "implied." In any setting, the
consent to the risk may be "reasonable" or "unreasonable." The Uni-
form Act's definition of "fault" is operable only in the "implied,

secondary, unreasonable" segment of cases, and the full set of com-

missioners' comments so demonstrate. The third comment just quoted
should be taken to apply only to the "implied, secondary, reasonable"

situation, and to mean only that the defendant should not be entitled
to a reduction of damages in that context.

One difficulty attorneys and judges seeking to apply the Indiana
Act are certain to experience is that there is no official commentary

accompanying that Act. Since the Indiana Act borrows so heavily from

the Uniform Act in many respects, it may be argued that the Uniform
Act's commentary guided the General Assembly, and an adoption of

the substantive part of the Uniform Act is tantamount to adopting the

commentary. On the other hand, it can be forcefully argued that the
comments limiting the general language of the definition of "fault" do

not control the Indiana Act's definition. That argument finds support

in the fact that the legislature did not adopt the Uniform Act verbatim.

Since the Uniform Act's commentary presumes a "pure" comparative

fault system, any presumption that the General Assembly adopted the

commentary along with the substantive language must be tested with

care, especially when we cannot truly know whether the legislature was
even aware of the commentary. It is abundantly clear from a complete

"^Uniform Act, supra note 314, at 38,



1984] FIRST GLANCE 769

reading of the commentary, however, that no modification of the def-

inition of "fauh" for those jurisdictions wishing to adopt something

less than a "pure" system was considered necessary, or even advisable,

by the commissioners."^ To construe the Indiana Act to have gone
beyond the Uniform Act to abohsh an important common law defense
on the basis of the simple phrase "unreasonable assumption of risk not

constituting an enforceable express consent"^"*^^ is not compelled by the

phrase itself. To bolster that construction with an argument that the
absence of official clarifying commentary compels it puts a weak pre-

sumption upon a foundation that is weaker still.

C. The Indiana Act's Definition

1. General Issues.—Not only does the Indiana Act contain the
Uniform Act's "unreasonable assumption of risk" language and the

difficulties associated with that phrase, it has added the words "incurred

risk" to the definition of fault. ^'^' Dean Prosser has asserted that the

words "incurred risk" represent simply another "invented name" for
assumed risk in those jurisdictions, such as Indiana, where assumed risk

is the term which applies when the parties stand in some relation of

contract, and incurred risk appHes to all other cases. ^"^^ He has said
further that "[t]his appears to be a distinction without a difference. "^'^^

If he was correct in respect to Indiana law, the ramifications for com-

parative fault in Indiana can be quite significant, since the words "in-

curred risk" are bare of the modifying phrases accompanying "assumption

of risk." The Act will require that plaintiffs who incur a risk be treated
differently than those who have assumed the risk, and unless some
differences between the defenses exists in the common law which would
justify the difference in treatment under comparative fault, the Act may
need to be amended to correct the disparity. Some exploration of Indiana
case law is therefore necessary in order to discover what the inclusion

of "incurred risk" without the qualifying words means.

2. The Background of Indiana Case Law.—The presence or absence
of a contractual relationship between the parties is of significance in

Indiana on the question of whether a plaintiff "assumed" the risk or
"incurred" it. If the relationship between the parties at the time of the

injury is one of master and servant, ^"^"^ or of some other contractual

''''See the commissioners' suggestions for modifying the substantive language of the

apportionment section. Uniform Act, supra note 314, at 38. No other changes in the
Act for a "modified" system were considered necessary.

^*°IND. Code § 34-4-33-2(a) (Supp. 1984).
'''Id.

''^W. Prosser, supra note 306, § 68, at 439-40.

'''Id. at 440.

'"^The defense is no longer applicable to master and servant relationships that invoke

the coverage of the Indiana Workmens' Compensation Act, since the remedy for workers



770 INDIANA LAW REVIEW [Vol. 17:687

nature, the defense is referred to as assumption of risk. If no contractual

relation exists, the defense is said to be incurred risk.^"^- The court that

first used the incurred risk terminology gave no particular reason for

its adoption,'-*^ nor is any apparent from the later Indiana cases. On
several previous occasions the Indiana Supreme Court had addressed the

defense simply as "assumption of the risk," and had denied plaintiffs'

recovery using that language. ^"^^ Some of these early cases considered
facts which also presented issues of contributory negligence, however,

and in those cases the court seemed to be of the view that assumption

of risk and contributory negligence were at least intermingled if not

interchangeable. ^"^^^ As a result, no clear statement of the conceptual

grounds of the assumption of risk defense emerged from the opinions

and a rather muddled statement of doctrine characterized many of the
decisions.

It is clear, however, that near the turn of the century the court

began to think of assumption of risk as a principle dependent upon

contractual relations between the parties, and contributory negligence as

a principle applicable only upon an evaluation of the actions of the

parties apart from contract. ^"^^ Since the doctrine of assumption of risk

as applied in the master and servant cases meant not only that the

servant took upon himself those risks which the contract of employment

provided by that statute is exclusive. See Ind. Code § 22-3-2-6 (1982); B. Small, Workman's
Compensation Law of Indiana 315 (1950).

^"•^Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Hoffman, 57 Ind. App.
431, 107 N.E. 315 (1914); Indiana Natural Gas Co. v. O'Brien, 160 Ind. 266, 65 N.E.

918 (1903).

^'^The Indiana Supreme Court employed the concept in the case of Indiana Natural

Gas & Oil Co. V. O'Brien, 160 Ind. 266, 65 N.E. 918 (1903). It cited to no earlier Indiana
case which had made the distinction, but rather to other jurisdictions and authorities.

3^'Morrison v. Board of Comm'rs of Shelby County, 116 Ind. 431 (1888); Town of
Gosport V. Evans, 112 Ind. 133 (1887); Morford v. Woodworth, 7 Ind. 83 (1855); President

and Trustees of the Town of Mt. Vernon v. Dusouchett, 2 Ind. 586 (1851).
'"^Bruker v. Town of Covington, 69 Ind. 33 (1879), citing to the Dusouchett case,

2 Ind. 586 (1851), said that the plaintiff "has no reason to complain of the injury he

may sustain" and must be treated as having taken "the risk upon himself," and added
the following phrase as an afterthought: "In other words, that a disregard of the knowledge

of the existence of such an obstruction, by which an injury results, amounts to contributory

negligence." 69 Ind. at 36. In Evansville & Terre Haute R. Co. v. Griffin, 100 Ind. 221,
225 (1884), the court said "It was negligence to take the risk." In a later case the supreme

court said: "The law accounts it negligence for one, unless under compulsion, to cast
himself upon a known peril, from which a prudent person might reasonably anticipate

injury." Morrison v. The Board of Comm'rs of Shelby County, 116 Ind. 431, 433 (1888).
The Morrison court cited authority for this proposition which had relied upon a similar

proposition from Lord Ellenborough's opinion in Butterfield v. Forrester, 183 Eng. Rep.

926 (1809), the case most often cited as the source of the contributory negligence doctrine.

See Town of Gosport v. Evans, 112 Ind. 133, 137 (1887).
'^'^See Davis Coal Co. v. Polland, 158 Ind. 607, 619, 62 N.E. 492, 497 (1902).



1 984] FIRST GLANCE 11 1

expressly covered, but also those that the worker knew about or were

necessarily incident to the work activity, the notion that the worker

could be deemed to have impliedly assumed the risk of injury merely

by entering into the work activities was an important feature of the

doctrine. ^^^

The resemblance between these "implied" assumption of risk cases

coming out of the workplace and the implied acceptance of risks inherent

in ordinary social intercourse was noted by the Indiana Supreme Court.

In the first case to use the words "incurred risk," Indiana Natural Gas

& Oil Co. V. O'Brien,^^^ in response to the defendant's claim that the
plaintiff had assumed the risk, the plaintiff argued that the defense

could not be raised in a noncontractual setting. Finding that the maxim
volenti non fit injuria was "not confined alone to cases where the

relation of the parties is of a contractual nature,"^" the court held that

the plaintiff's cause of action would be barred if the defendant could

show that the plaintiff knew of and appreciated the danger and "vol-

untarily, or of his own choice, exposed himself to or encountered such
a danger, thereby incurring, or taking upon himself, the risk incident
thereto. "^^^ This passage makes clear that the court considered the

elements of incurred risk to be identical to those of assumed risk. It

is possible, however, that the court was simply using the words "incurred

risk" to express what has been referred to here as "implied" assumption

of risk, since the court did not actually define "incurred risk." Subsequent

cases, however, have focused upon the contractual relationship as the
dividing line between the two defenses, rather than the line between

"express" and "impHed" acceptance. Indeed, the courts have held that
a plaintiff may "impliedly" assume the risk in situations arising from
a contractual relationship.^^"*

The O'Brien case is also important in establishing a line of de-
marcation between incurred risk and contributory negligence. The court

very carefully set out its view that incurred risk was not simply a matter

of contributory negligence, and that contributory negligence was not to

''"E.g., Louisville, New Albany & C. Ry. Co. v. Sandford, 117 Ind. 265 (1888);
Indianapolis & St. L. Ry. Co. v. Watson, 114 Ind. 20 (1887); Lakeshore & Mich. So.
Ry. Co. V. Stupak, 108 Ind. 1 (1886), and other cases cited by the O'Brien court, Indiana
Natural Gas Co. v. O'Brien, 160 Ind. 266, 65 N.E. 918 (1903).

^'^'160 Ind. 266, 65 N.E. 918 (1903).

'''Id. at 272, 65 N.E. at 920.

'''Id. at 273, 65 N.E. at 920 (emphasis added).

3'^Meadowlark Farms, Inc. v. Warken, 176 Ind. App. 437, 450, 376 N.E.2d 122,
132 (1978) (citing Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N.E. 741 (1891)).
See also Kroger Co. v. Haun, 177 Ind. App. 403, 415, 379 N.E.2d 1004, 1011-12 (1978)
(where the court, without deciding the matter, speaks as if a plaintiff may incur the risk
by expressly consenting to it) (citing Restatement (Second) of Torts §§ 496B, 496C
(1965); James, Assumption of Risk, 61 Yale L.J. 141 (1957); W. Prosser, supra note
306, at 440)).



772 INDIANA LAW REVIEW [Vol. 17:687

be considered an element of the newly articulated doctrine. Focusing

upon the elements of the plaintiff's knowledge, appreciation, and vol-

untary encounter of the risk, the court contrasted those elements with

the "carelessness" and "imprudence" constituting negligence. It observed

that "carelessness in regard to a matter is not the same as the exercise

of a deliberate choice in respect thereto. "^"^-^ The court concluded: "It

is evident that contributory negligence and incurring the risk of a known
and appreciated danger are two independent and separate defenses which

should not be confused with each other. "^-^ The O'Brien case has never

been repudiated, but, despite its explicit treatment of the distinction

between contributory negligence and incurred risk, some confusion has

persisted in the Indiana courts.^"

Definitive treatment of the doctrine of incurred risk and its rela-

tionship with contributory negligence was given by the Indiana Court

of Appeals in the case of Kroger Co. v. Haun?^^ Haun was injured
when a forklift jacking machine he was operating backed into a stack
of boxed groceries, crushing his foot. Defendant Kroger Company con-
tended at trial and on appeal that Haun was contributorily negligent
and had incurred the risk of injury in the operation of the forklift. In

affirming the judgment for the plaintiff, the court of appeals discussed

the doctrines of incurred risk and contributory negligence in great detail.

'"160 Ind. at 273, 65 N.E. at 920. In this portion of the opinion, the court was

responding to defendant's main argument that plaintiff must allege and prove freedom

from assumption of risk. An 1899 statute had shifted the burden of proof from plaintiff
to defendant on issues of contributory negligence, and defense counsel argued that the

statute had not affected the burden with respect to assumed risk which, they asserted,

remained with plaintiff. The court observed that although earlier cases had failed to

distinguish between incurred risk and contributory negligence, the precise issue of whether

plaintiff was required to negative incurred risk had never been decided. Treating the issue

as one of first impression, the court declared that defendant, rather than plaintiff, would

bear the burden on the issue. Importantly, however, it also said that its ruling did not

affect the previous rule that in assumption of the risk cases (master and servant and other

contractual relations cases) plaintiff bore the burden. Alternatively, it said that the legislature

may have intended the 1899 statute to operate on incurred risk in the same way as
contributory negligence since so many court decisions had treated the doctrine as a "species"
of contributory negligence, and so defendant's argument would fail under that view as

well. The latter part of the opinion was the source of some confusion by a later court

in the case of Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Lynn, 177 Ind.
311, 95 N.E. 577 (1911). In spite of the clear statements by the O'Brien court concerning

the nature of the defense, the Lynn court read the case to say that incurred risk is a

"species" of contributory negligence. Only two of the justices that were on the supreme

court bench at the time of O'Brien were still on the court when Lynn was decided. The

confusion has persisted. See infra text accompanying note 360.

"^60 Ind. at 273-74, 65 N.E. at 920.

'''See cases cited in Kroger Co. v. Haun, 177 Ind. App. 403, 408-10, 379 N.E.2d

1004, 1008-09 (1978); see also infra notes 359 and 360.

"M77 Ind. App. 403, 379 N.E.2d 1004 (1978).



1984] FIRST GLANCE 773

and concluded that the judgment should not be overturned upon ap-

plication of either of the two doctrines. Citing the persistent tendency

of the courts to confuse the two defenses, ^^^ the court declared its purpose

to "attempt to reconcile the incongruity of these decisions and to hope-

fully clarify and develop a consistency in the use and application of the

defenses.
"^^°

First the court outlined the "dissimilarities" between incurred risk

and contributory negligence advanced by other courts. The court's treat-

ment is simplified and rendered graphically below:

Incurred Risk

1. "demands a sub-

jective analysis with

inquiry into the . . .

actor's knowledge and

voluntary acceptance

of the risk. "361

2. **is concerned

with the perception

and voluntariness of

a risk and is blind as

to the reasonableness

of risk accept-

ance. "363

3. "involves a men-

tal state of 'ventu-

rousness.
' "365

Contributory Negli-

gence

1. "contemplates an

objective standard for

the determination

whether a reasonable

man would have so
acted under similar

circumstances. "362

2. "is concerned

with whether the ac-

ceptance of the risk

was reasonable and

justified in light of

the possible benefit

versus the degree of

danger. "364

3. "under some def-

initions, describes

conduct which is

'careless.'
"3^6

^^^The court cited Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Lynn, 177
Ind. 311, 95 N.E. 577 (1911); Rouch v. Bisig, 147 Ind. App. 142, 258 N.E.2d 883 (1970);
Emhardt v. Perry Stadium, Inc. 113 Ind. App. 197, 46 N.E.2d 704 (1943). See Kroger
Co., 177 Ind. App. at 408-09, 379 N.E.2d at 1008.

^«'177 Ind. App. at 409, 379 N.E.2d at 1008.

5"/d/. (citing Freuhauf Trailer Division v. Thornton, 174 Ind. App. 1, 11, 366 N.E.2d

21, 29 (1977); Morris v. Cleveland Hockey Club, Inc., 157 Ohio St. 225, 105 N.E.2d 419
(1952)).

^"177 Ind. App. at 409, 379 N.E.2d at 1008.

'"^Id. (citing Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex. 1963)).
'"177 Ind. App. at 409, 379 N.E.2d at 1008.

'"^Id. (citing Weber v. Eaton, 160 F.2d 577 (D.C. Cir. 1947); Pittsburgh, C.C. &
St. L. Ry. Co. V. Hoffman, 57 Ind. App. 431, 107 N.E. 315 (1914)).



774 INDIANA LAW REVfEW [Vol. 17:687

4. "in one sense of 4. "always presup-

the concept, has been poses a duty and

described as negating breach thereof, but

a duty and therefore serves as an affirm-

precluding negli- ative defense to pre-

gence . . . ."-^^ vent recovery by

plaintiff.
"^6«

Second, the court discussed the basis of the confusion of the two

doctrines in Indiana case law. It observed that in some cases the incurred

risk elements of knowledge and appreciation of the risk had been con-

sidered satisfied by the application of the objective test of the "reasonable

man," and that in some contributory negligence cases the courts had

mistakenly required a showing that plaintiff knew and appreciated the

peril.
^^"^ Noting the split of authority on the question of whether "con-

structive" knowledge and appreciation of danger should be permitted

to satisfy the pertinent elements of incurred risk, the court rejected the

"constructive" theory. "° In comparison, contributory negligence, the

court concluded, might be established either by proof of plaintiff's actual

knowledge of the danger or by applying the objective standard of

reasonableness. Under the latter method, the plaintiff will be found

contributorily negligent despite the lack of actual knowledge if he should

have "appreciated or anticipated the danger. "^^' Yet, the requirement

of actual knowledge and voluntary acceptance necessary for incurred

risk, in the court's view, should never be satisfied by the application

of a standard of what plaintiff was required to know in the exercise
of ordinary care."^

'"nn Ind. App. at 409, 379 N.E.2d at 1008.
'"'Id. (citing Gordon v. Maryland State Fair, Inc., 174 Md. 466, 199 A. 519 (1938)).
^'"'177 Ind. App. at 409-10, 379 N.E.2d at 1008. As examples of the importation of

the reasonableness standard of contributory negligence into incurred risk, the court cited

Meadowlark Farms, Inc. v. Warken, 176 Ind. App. 437, 376 N.E.2d 122 (1978); Sullivan

V. Baylor, 163 Ind. App. 600, 325 N.E.2d 475 (1975); StalHngs v. Dick, 139 Ind. App.

118, 210 N.E.2d 82 (1965). 177 Ind. App. at 410, 379 N.E.2d at 1008-09. It discussed

Rouch V. Bisig, 147 Ind. App. 142, 258 N.E.2d 883 (1970), and Hi-Speed Auto Wash,

Inc. V. Simeri, 169 Ind. App. 116, 346 N.E.2d 607 (1976) as troublesome cases where

the knowledge and appreciation of peril elements were apparently misapplied. 177 Ind.

App. at 412-13, 379 N.E.2d at 1010.

"'The court said: "It is our conclusion, however, that the integrity of each doctrine

is better preserved when such situations are treated as unreasonable conduct in failing to
recognize an obvious risk or danger, therefore constituting contributory negligence." 177

Ind. App. at 411, 379 N.E.2d at 1009.

'"Id. at 413, 379 N.E.2d at 1011.

''^Id. at 410, 379 N.E.2d at 1009. It should be noted that the court was not attempting

to establish a concept of incurred risk tantamount to abolishing the "implied" sense of

the defense. The court quoted from authorities taking the position that the plaintiff's

subjective state of mind could be inferred from factors such as his own statements, " 'age.



1984] FIRST GLANCE 11

S

The court then set out an analytical framework for applying the

two defenses to avoid the misunderstanding and misapplications of the

past. The court believed that the key to clarification lay in an examination

of the "various possibilities concerning the conduct of a plaintiff suing

in a negligence action. "^^'' The analysis first identified the "components"

present in "every conceivable circumstance in which the conduct of [the]

plaintiff is in question" :^^^

(1) The existence or non-existence of a duty owed by the de-

fendant to plaintiff for the prevention of the danger in

question;

(2) The voluntariness of plaintiff's conduct and his knowledge

and appreciation of its possible consequences, or lack thereof;

and

(3) The reasonableness of the risk entailed or conduct engaged

in by the plaintiff.^^^

On its face, the first "component" may appear to be misplaced in an
analysis which purports to be directed at an evaluation of the plaintiff's

conduct, since the relevance of the defendant's duty to the legal sig-

nificance of the plaintiff's conduct is not immediately apparent.

The relevance Hes in the court's explanation of the use of the components.

The court said the first "component" must be examined to determine

"whether the risk or danger in question falls within the ambit of a duty

owed by the defendant to plaintiff. "^^^ This first stage of evaluation

may conclude the inquiry if the "defendant's duty does not include
protection from the risk, either because of express or implied consent. "^^^

It is readily apparent that the court's first concern is whether the plaintiff

experience, knowledge and understanding as well as the obviousness of the defect and

danger it poses.' " Id. (quoting Williams v. Brown Mfg. Co., 451 111. 2d 418, 216 N.E.2d

305, 312 (1970)). The authorities discuss the matter in the context of assumed risk of

dangerously defective products, but it is clear that the court was relying upon them for

the more general proposition that the knowledge and voluntary acceptance elements of

the defense might be inferred from the evidence in the case without applying the normative

standard of what plaintiff should have known. 177 Ind. App. at 410, 379 N.E.2d at 1009.

Furthermore, in discussing the "primary" sense of incurred risk, the court specifically

referred to plaintiff's "express or implied consent." Id. at 415, 379 N.E.2d at 1011.

"M77 Ind App. at 414, 379 N.E.2d at 1011.
'''Id.

'''Id. at 414-15, 379 N.E.2d at 1011.

"^M at 415, 379 N.E.2d at 1011.
'''Id. This is perhaps a slight overstatement by the court stemming from its abbreviated

treatment of the "primary" sense of the general concept of assumption of risk. An
examination of the authorities the court cited will show that "primary" assumption of

risk includes situations where the defendant owed no duty to the plaintiff at the outset
as well as those where, because of the plaintiff's conduct, the risk resuhing in actual

harm is removed from the scope of the defendant's preexisting duty and the defendant's

act is thereby deemed to be no breach. Restatement (Second) of Torts §§ 496B, 496C;

James, supra note 354, at 141; W. Prosser, supra note 306, § 68, at 440; Halepeska v.
Callihan Interests, Inc., 371 S.W.2d 368 (Tex. 1963), cited at 111 Ind. App. at 415, 379



776 INDIANA LAW REVIEW [Vol. 17:687

has taken on the risk in the "primary" sense. The key elements at this

stage of the court's analysis are duty and consent. The court was not

explicit about what the object of the plaintiff's consent must be, but

it is certain that if the plaintiff has consented, that consent removes

protection from the risk of harm from the defendant's set of duties.
This effect pertains to the court's attempt to analytically separate the

incurred risk and contributory negligence defenses because unless the

defendant is primarily negligent, the plaintiff cannot be contributorily

negligent. ^~'^ If the plaintiff's consent to the risk relieves the defendant

of a duty or a breach of that duty, no negligence to which the plaintiff

can contribute exists.

This segment of the court's opinion is also important for establishing

a perspective upon the place the reasonableness standard occupies in the

court's larger analytical framework. Earlier the court had stated the

proposition that the reasonableness standard pertains only to issues of

negligence. If the court is wrong about this and reasonableness necessarily

figures in determinations of plaintiffs' accountability for assuming/in-

curring the risk, then the "overlap" between the assumption of risk and

contributory negligence defenses is complete and the two are inter-

changeable. The court's discussion of the specific apphcation of the first

"component" of its analytical framework attempts to demonstrate the

vahdity of its proposition in the context of "primary" assumed/incurred

risk. Although somewhat obscured by the brevity of treatment (the court

N.E.2d at 1011-12. See also Armstrong v. Mailand, 284 N.W.2d 343, 348-50 (Minn. 1979).
The point seems to have escaped observation by Dean Prosser in his categorization of

assumption of risk even though he cites cases where the principle was employed. See cases

cited in W. Prosser, supra note 306, § 68, at 446 n.71 and the same cases cited in the
Appendix to the Restatement (Second) of Torts, § 496C, at 414 (1966), as the basis

for Illustration 3 to comment g. The Haun court apparently relied more upon Prosser's
generalizations than upon the authorities. In fairness to the court, the overstatement seems

to stem more from its attempt to briefly comment upon an aspect of incurred risk not
directly pertinent to the case at hand rather than from misunderstanding, and its later

illustrations of "primary" incurred risk redeem the slight inaccuracy. See 177 Ind. App.

at 415-416, 379 N.E.2d at 1012. If this concept of the "primary" sense of the assumption

of risk defenses is not kept in mind, the court's statement of the significance of the

analysis of the first "component" is susceptible to misunderstanding. Following its outhne

of "components," the court made the statement that "contributory negligence presupposes

the existence of a duty by defendant and breach thereof." Id. at 415, 379 N.E.2d at

1012. The court probably did not mean by its brief statement that if the defendant is
under a preexisting duty then the reasonableness of the plaintiff's consent to the risk

becomes relevant. The court reasoned that absent either one of the elements of duty or

breach, no occasion to consider the plaintiff's contributory negligence would arise. Id.

Since the plaintiff's assumption to risk could defeat either of those elements, the case

could be resolved in favor of the defendant simply by ascertaining whether the plaintiff

consented to the risk and without inquiring into the reasonableness of that consent.

^'"The court said, simply: "Where the defendant owes no duty or has not breached
an existent duty, the question of contributory negligence is extraneous and not reached."

177 Ind. App. at 415, 379 N.E.2d at 1012.



1984] FIRST GLANCE 111

was, after all, not confronted with a case of "primary" assumed/incurred

risk), the logic seems to be this: (1) If accountability for assumed/

incurred risk can be decided without reference to the reasonableness of

the plaintiff's conduct, then the defense is not dependent upon that

objective standard; (2) if the plaintiff's consent to the risk relieves the

defendant of a duty, then the plaintiff's prima facie case of negligence

against a defendant is defeated; (3) absent a prima facie case of negligence

against the defendant, the "question of [the plaintiff's] contributory

negligence is extraneous and not reached" ;^^'^ (4) the accountability having

been established in assumed/incurred risk without reference to the rea-

sonableness of the plaintiff's conduct, the independence of "primary"

assumed/incurred risk from negligence theory is established. ^*^^^

The court's discussion then turned to the "secondary" sense of

incurred risk, where the defendant has breached a duty to protect the

plaintiff from the risk of injury, but the plaintiff, knowing of the

potential for harm and appreciating that potential, has engaged in conduct

that relieves the defendant of responsibility for the resulting harm. Noting

that the plaintiff's conduct under such circumstances may either constitute
a voluntary acceptance of the risk or a failure to act reasonably under

the circumstances, or both, the court acknowledged the area of "overlap"

between incurred risk and contributory negligence. ^^' The court admitted

that there is no significant practical effect in a failure to distinguish the

two defenses in the usual case where both are available. ^^^ The court

quoted extensively from the O'Brien case and, without really saying so,

seemed to disfavor its voluntary act-careless act dichotomy for distin-

guishing the two doctrines, characterizing that decision as "narrow" and

concerned only with "simple neghgence."^^^

In this portion of the opinion, without really saying so, the court

seems to have favored the "modern" expansive view of contributory
negligence. That view, expressed by Dean Prosser and in the Restate-
ment, ^^"^ maintains that the defense of contributory negligence is primarily

based in the reasonableness of the plaintiff's conduct, including voluntary

acts exposing the plaintiff to known peril. In contrast to the sharp
distinctions between incurred risk and contributory negligence maintained

by the O'Brien court with its voluntary act/careless act dichotomy, the

"modern" view, since it permits any act of the plaintiff to be evaluated
against the reasonableness standard, including voluntary risk-incurring

acts, permits contributory negligence to swallow up the incurred risk

'""Id.

"'M at 416, 379 N.E.2d at 1012.
'^Hd. at 418, 379 N.E.2d at 1013.

'^Hd. at 417-18, 379 N.E.2d at 1013.

^^W. Prosser, supra note 306, § 65, at 424; Restatement (Second) of Torts §
466 (1965), both quoted by the Haun court. 177 Ind. App. at 417, 379 N.E.2d at 1013.



778 INDIANA LAW REVIEW [Vol. 17:687

defense. The Haun court attributed judicial disagreement about whether
"secondary" assumed risk defenses are merely species of contributory

negligence or are independent defenses to the competing definitions of

contributory negligence: the "narrow" definition tied to "carelessness,"

as in the O'Brien case, and the "broad" definition embracing the all-

encompassing view of reasonableness. -^^^

The court did not, however, explicitly adopt either of the competing

views. The court preferred to leave them as it found them, being content

to say that pragmatically the distinction is "without substantive signif-

icance" where both are applicable. ^^^ The court seems to have been

content to allow either defense to operate interchangeably within the

area of their functional overlap, but it offered no thoughts about its

view of the extent of the overlap.

The court asserted the importance of distinguishing the defenses,
however, in cases where the nature of the claim makes contributory
negligence unavailable but where incurred risk is still a proper defense.

The court raised guest statute and strict tort liability cases as examples,
but it follows that any case where the theory of the defendant's culpability

is something other than negligence could be similarly treated. The court
pointed out the perplexity faced in those jurisdictions governed by the

"expansive" definition of contributory negHgence when cases presenting
a necessity for distinguishing the two defenses arise: "If incurred risk

is a 'type' of contributory negligence, then either: (1) incurred risk cannot

be a defense to such actions since contributory negligence is not, or (2)
contributory negligence is a defense since incurred risk is."^®^ The Haun
court rejected the merger of the two defenses, establishing that the
analytical separation of the defenses should be maintained where it makes
a pragmatic difference to do so. This separation is based on the de-
termination of whether the plaintiff freely and intelligently chose to
accept the consequences of the risk, a determination similar to that made
in "primary" incurred risk situations. The court stated its conclusion
in the following terms:

While contributory negligence (unreasonable conduct) is not a

defense in such cases, it may nevertheless be present in the form
of conduct which includes the additional elements of voluntary

and knowing incurrence. This is, in effect, the "overlap." In

such situations, the mere presence of unreasonable conduct, and

therefore contributory negligence, does not preclude plaintiff

from recovery, but neither does it prevent the defendant from

asserting the incurred risk elements of the conduct. The "un-

'^'177 Ind. App. at 417-18, 379 N.E.2d at 1013.

'^Id., at 418, 379 N.E.2d at 1013.

'"'Id., 379 N.E.2d at 1014.



1984] FIRST GLANCE 779

reasonableness" of the conduct is not determinative in such

actions. ^^^

The court was not merely saying, however, that analytical separation

should be maintained between incurred risk and contributory negligence

principles only where the latter defense is unavailable. The discussion

of the guest statute and strict hability cases was intended as reinforcement

for its assertion that analytical separation is necessary in any case in

order to avoid confusion. The court then proceeded to apply its analysis

to the facts of the case, first to determine whether the plaintiff could,

as a matter of law, be said to have incurred the risk (without reference

to the reasonableness of the plaintiff's lack of knowledge) and then,

independently, to determine whether he could be said to have acted

unreasonably in faihng to discover the risks or in other conduct. It

found for the plaintiff in both branches of this application, but the

clear import of its treatment is that it would have reached a different

result had it been able to conclude from the evidence that the plaintiff

knew, appreciated, and voluntarily encountered the risk without regard

to the reasonableness of those factors. ^^^

By refusing to treat "impHed secondary" incurred risk and con-
tributory negligence as a homogenized mixture, the Haun court's analysis,
application, and conclusions means that the court discerned the nonfault

basis of accountability of incurred risk, and intended to give it currency.

It required a factual determination of the elements of incurred risk

without reliance upon a normative judgment call about whether the

plaintiff should have known or appreciated the risk. It required and
applied an analysis of the plaintiff's voluntariness in encountering the

risk without reliance upon an objective determination that he acted so
unreasonably that he must be treated as a volunteer. If the analytical

separation required by the court is maintained in the face of the trans-

formation of contributory negligence into comparative fault, the plaintiff

would still be totally barred if the incurred risk elements were satisfied,

regardless of whether his conduct was totally reasonable or was unrea-

sonable enough to invoke the apportionment principle. The refusal of
the court to rely upon fault to satisfy incurred risk elements, as well

as the significant difference between the Uniform Act's approach to

assumed risk and the court's approach to incurred risk call into question

the propriety of the legislature's unquahfied inclusion of "incurred risk"

in the Comparative Fault Act's definition of "fault."

D. Problems of Interpretation Raised by the Indiana Act's Language

I. Introduction.—Variations in the interpretation and application
of the Comparative Fault Act concerning the assumption of risk defenses

'''Id. at 419, 379 N.E.2d at 1014.

'''Id. at 419-21, 379 N.E.2d at 1014-15.



780 INDIANA LAW REVIEW [Vol. 17:687

are imminent by virtue of the use of "unreasonable" as a qualifier of

"assumed risk" and no qualification of "incurred risk." The thrust of

the interpretations will depend upon the extent to which the views of

the Haun court about incurred risk are considered to have been incor-
porated into the Act, the extent to which the views propounded in the

Uniform Act's commentary are taken to have been adopted by the Act,

and the support in logic, pohcy, and function each interpretation can

muster.

If one were to assume that the words of the statute alone controlled

its interpretation, then the conclusion easily follows that only "unrea-

sonable" impHed assumptions of risk are incorporated into comparative

"fault" while all of incurred risk is included. When it comes to applying
the Act to actual cases, however, interpretation may not prove to be
such a simple matter. Behind the simple language of the Uniform Act

are its potentially complicating comments. Litigants will certainly attempt

to use the Uniform Act commentary on both sides of the bar. The

words "incurred risk" are surely included, but the Kroger v. Haun
formulation of that defense will just as surely be argued as a limitation

upon the meaning of those words. If less than the full assumed risk

doctrine and all of the incurred risk doctrine are taken to be included

by the statute, then questions of consistency between the defenses arise

which may not be sustainable under the new principles of comparative
fault. Two conflicting interpretations are possible once the task of inter-
pretation is carried beyond the mere language of the definition, one of

which would incorporate the Haun court's formulation of incurred risk,
and the other which would abandon the definition of incurred risk

articulated by Haun, in effect reading the statute as legislatively overruling

the court's holding.

2. A ''Modified" Assumed Risk - "Limited" Incurred Risk Inter-
pretation.—The Uniform Act, by its terminology and as expanded by
the commentary accompanying it, is intended to apply to "implied

secondary" assumption of risk situations; in addition, it has adopted

the expansive merger theory of assumption of risk and contributory

negligence discussed in Haun.^'^^ The Uniform Act's commentary par-

ticularly illustrates the commissioners' view that in cases where the

definition applies, unless the plaintiff's deliberate conduct can be deemed

faulty, the apportionment principle is not triggered. ^^' All of this means

that in "implied secondary" assumption of risk cases where the defendant

fails to prove that the plaintiff's actions were unreasonable, the plaintiff

recovers fully for his injuries. Yet, the commissioners did not simply

^"^'See supra text accompanying notes 384-86.

'^'Uniform Act, supra note 314, at 38. The commentary also includes the statement:

"this [definition of "fault"] is the case of unreasonable assumption of risk, which might

be likened to deliberate contributory negligence and means that the conduct must have

been voluntary and with knowledge of the danger." Id. (emphasis added).



1984] FIRST GLANCE 781

incorporate all of assumed risk into the Uniform Act. While they adopted

the expansive view of the "overlap" area, some of assumed risk remains

outside the Uniform Act's comparative fault scheme. Implied and express

"primary" assumption of risk and express "secondary" assumption of

risk remain outside the coverage of the definition of "fault." Where

the defendant successfully establishes one of these three segments of the

defense, the common law features of the doctrine are operable and the
plaintiff's action will fail completely. Thus, even though the Uniform

Act adopts the expansive contributory negligence view and incorporates

it into comparative fault, the use of the modifier "unreasonable" and

the commentary explaining the meaning of the phrase demonstrate the

intent to include only the segment of assumption of risk cases in which

the plaintiff's encounter with a risk created by the defendant's negligence

would fail to satisfy an objective standard of reasonableness. The phrase

"not constituting an enforceable express consent" demonstrates the intent

that, within the preceding class of cases, only those in which the plaintiff

impliedly knew, appreciated, and encountered the risk are to be considered

as "fault." This discussion will refer to the defense subsumed in the

Uniform Act's definition as "modified" assumption of risk.

If the Indiana General Assembly is presumed to have been aware

of the coverage of assumption of risk intended by the commissioners,

then it may be said that the adoption of the very same language as the
Uniform Act brought with it the same intent. If the General Assembly

is presumed to have been aware of the Kroger v. Haun decision, it may
be said that its inclusion of the words "incurred risk" in the statute

brought with those words the court's pronouncements upon them. The
Haun court's view of "implied secondary" incurred risk, however, is
not the same as the Uniform Act's view of "implied secondary" as-

sumption of risk. The Uniform Act's concept of the defense permits
the plaintiff to recover if the fact finder is unable to conclude that the

plaintiff's risk-assuming conduct was unreasonable. A similar case subject
to the Haun analysis would still result in a total bar under incurred
risk because the reasonableness of plaintiff's conduct would be irrelevant.

Furthermore, since the Haun court equated "primary" incurred risk
with "primary" assumed risk, it follows that if a defendant proves that

a plaintiff's incurral of the risk had the effect of negating a duty or

breach, the plaintiff's action will fail and no occasion for apportionment

will arise. Since this view maintains that some aspects of incurred risk
should remain outside of the apportionment, this discussion will refer

to the segment of incurred risk which the Haun court's analysis would
permit to be treated as comparative "fault" as "limited" incurred risk.

A summary of the conclusions reached under this interpretation are:
(1) If the segment of "implied secondary" assumption of risk

is the appropriate defense, the defendant may invoke the
apportionment principle by proving that the plaintiff's con-

duct was unreasonable.



782 INDIANA LAW REVIEW [Vol. 17:687

(2) If the plaintiff's conduct constituting "implied secondary"

assumption of risk was reasonable, the defendant's com-

parative fault defense fails and the plaintiff's recovery is

not apportioned.

(3) If the circumstances present a "valid and enforceable express

consent" or "a lack of violation of duty," the segment of

"implied secondary" assumption of risk is not applicable

and the common law principles of assumption of risk remain
as a complete bar.

(4) If "secondary" incurred risk is the appropriate defense

whether "express" or "implied," the defendant may invoke
the apportionment principle by satisfying the subjective ele-

ments of incurred risk (knowledge, appreciation of peril,

and a voluntary encounter), but may not satisfy those ele-
ments by proving the unreasonableness of plaintiff's con-

duct.

(5) If "primary" incurred risk is the appropriate defense, the

apportionment principle is not invoked and the common
law principles of incurred risk remain as a complete bar.

(6) Defendant may in any case be able to compel apportionment
by proving contributory fault in some other respect.

3. A "Modified" Assumed Risk - "Total" Incurred Risk Interpre-
tation.—Arguments that the legislature intended not to incorporate the
Kroger v. Haun formulation of incurred risk into the statute at all, but
rather to legislatively overrule that case should be expected. The main

premise of these arguments will be that by including the general, un-

qualified term of "incurred risk" in the definition of "fault" the leg-

islature evidenced its intent that all issues of incurred risk, whether

"primary" or "secondary," "express" or "implied," be subject to

comparative fault principles.

The incentive for pressing such an argument lies with defendants in

some contexts and with plaintiffs in others. By breaking the incurred
risk defense out of the definitional boundaries established for it by the

Haun court, a defendant might be able to invoke the apportionment
principle under circumstances which would not have satisfied the Haun
concept of incurred risk. For example, Indiana courts have permitted

the trier of fact to overlook the plaintiff's contributory negligence in

cases where the defendant's conduct is shown to be willful, wanton, or

reckless. ^^^ In such a case, the ability to prove the presence of subjective

^^^Indiana courts have, on several occasions, in different settings, firmly stated the

proposition that the plaintiff's contributory negligence is not a defense to liability for the

defendant's willful, wanton, or reckless conduct. E.g., Hoesel v. Cain, 222 Ind. 330, 53

N.E.2d 165 (1944); Kizer v. Hazelett, 221 Ind. 575, 49 N.E.2d 543 (1943); Parker v.

Pennsylvania Co., 134 Ind. 673, 34 N.E. 504 (1893); Brannen v. Kokomo Greentown &
Jerome Gravel Road Co., 115 Ind. 115, 17 N.E. 202 (1888); Palmer v. Chicago, St. Louis



1984] FIRST GLANCE 783

knowledge, appreciation of the risk, and a voluntary encounter with it,

as required by the Haun court, may be impossible. Proving that the
plaintiff 5/70w/c^ have known and appreciated the risk and that the plaintiff

should be taken to have voluntarily encountered it may be a relatively
simple matter. Once the Haun shackles are removed, the defendant at
least can argue the matter before the jury. Plaintiffs' incentive arises

in the context of "primary" incurred risk. If a plaintiff subject to that

defense were able to invoke the apportionment principle to avoid the

total bar which the limited inclusion argument maintains, he would at

least be able to cut his losses. He too could present the argument to
the jury as to how reasonable he was in consenting to the risk.

The interesting aspect of this argument is that, as demonstrated by

its appeal to both sides of the bar depending upon the circumstances,

it really is not founded upon a particular theory of incurred risk or an

attempt to keep some principle inherent in that defense internally con-

sistent with comparative fault. It is rather based upon the broad appeal

that the objective standard holds for lawyers in its flexibility. The ability

of advocates to argue the reasonableness of their clients' conduct produces

and maintains the flexibility. Once reasonableness becomes the focus,
the nonfault aspects of the defense drop from view. Proponents of this

interpretation might assert that, in contrast to the Uniform Act's modified

inclusion of assumption of risk, which the commissioners "likened to

deliberate contributory negligence, "^^^ the inclusion of incurred risk in

the Indiana Act is general and unqualified. The contention would be

that the legislature intended to include not only that segment of incurred

risk which may be likened to deliberate contributory negligence and
which applies to conduct which "must have been voluntary and with

knowledge of the danger, "^^^ but also that part of incurred risk which

may be likened to nondeliberate contributory negligence, and which would
apply to nonvoluntary conduct and constructive knowledge of the danger.

Further support for this construction might be asserted to reside in

the apportionment principle itself. This branch of the argument would

contend that the motivating force behind the Act was to abolish the

harsh total bar of contributory negligence, and that the same motivation

induced the unquahfied inclusion of incurred risk. To the extent "that
the whole spirit of the defense and of the reasoning it employs bears

the strong imprint of laissez faire and its concomitant philosophy of

& Pittsburgh R.R. Co., 112 Ind. 250, 14 N.E. 70 (1887). In Indianapolis Union Ry. Co.
V. Boettcher, 131 Ind. 82, 28 N.E. 551 (1891), and Terre Haute, Indianapolis & Eastern
Traction Co. v. Maberry, 52 Ind. App. 114, 100 N.E. 401 (1913), the courts actually

permitted plaintiffs to recover. See also Freitag v. Chicago Junction Ry. Co., 46 Ind.

App. 491, 89 N.E. 501 (1909) op. mod. on other issues, 46 Ind. App. 503, 92 N.E. 1039

(1910).

"^Uniform Act, supra note 314, at 38.

''''Id.



784 INDIANA LAW REVIEW [ Vol . 1 7 : 687

individualism which has passed its prime, "^'^^ the Comparative Fault Act

marks a point of departure from that policy and philosophy in the

assignment of accountability. The argument supporting this interpretation

would contend that, outside the context of contractual dealings between

the parties, the comparative fault system should be permitted to work

its tempering effect upon the old common law principles of incurred
risk. If these premises are adopted as valid, the Haun court's analysis
of the defenses becomes a mere historical artifact. Its limitations upon

incurred risk become irrelevant because the "incurred risk" part of

"fault" is something entirely different from the common law defense
the court tried to define. In effect, this interpretation argues that "in-

curred risk," whatever it might mean in the context of an action based
on "fault," will trigger the apportionment principle. The "expansive"
definition of contributory negligence rejected by the Haun court will
have been outstripped by an even more expansive concept of "fault."

Contributory negligence and incurred risk had their area of "overlap"

which the Haun court almost begrudgingly acknowledged because of the
practical impossibility of distinguishing results. This "total inclusion"

interpretation of the definition of "fault" maintains that the area of

"overlap" is coextensive with the boundaries of "incurred risk"; that

whenever "incurred risk" is taken by the trier of fact as an appropriate

description of the plaintiff's conduct, that conduct constitutes "fault"

to be apportioned.

Summarized below are the conclusions reached about the operation

of the Comparative Fault Act if this interpretation is accepted:

(1) If the segment of "implied secondary" assumption of risk

is the appropriate defense, the defendant may invoke the
apportionment principle by proving that the plaintiff's con-

duct was unreasonable.

(2) If the plaintiff's conduct constituting "implied secondary"

assumption of risk was reasonable, the defendant's com-

parative fault defense fails and the plaintiff's recovery is

not apportioned.

(3) If the circumstances present a "vahd and enforceable ex-

press consent" or "lack of violation of duty," the segment

of "implied secondary" assumption of risk is not applicable

and the common law principles of assumption of risk remain
as a complete bar.

(4) If incurred risk is the appropriate defense, whether "pri-

mary," "secondary," "express," or "implied," defendant

is able to invoke the apportionment principle by satisfying

the elements of incurred risk (knowledge, appreciation of

peril, and a voluntary encounter) and may satisfy those

'"^2 F. Harper & F. James, supra note 307, § 21.3, at 1174.



1984] FIRST GLANCE 785

elements by the use of either a subjective or an objective

standard.

(5) In no case will the successful employment of the incurred

risk defense result in a total bar unless by incurring the

risk the plaintiff was more than 50% at "fault."

(6) Defendant may in any case be able to compel apportionment
by proving contributory fault in some other respect.

E. Appraisal of the Competing Interpretations

1. The Clash of Fault and Nonfault Bases.—In the Haun case, the
court was concerned that the pragmatic operational similarity of the

total bar of incurred risk and the total bar of contributory negligence

would obscure the conceptual and functional differences between them.

It went to great lengths to lay out an analytical framework designed to

maintain a separation based upon those differences. It acknowledged

that in some cases, where separation made no difference, no great harm
would come from treating the two as if they were simply contributory
negligence. It demonstrated, however, that certain classes of cases exist

where the independent existence, availability, requirements, and concep-

tual underpinnings of the two defenses do make a difference. The court's
guest statute illustration may have been diluted by the General Assembly's
recent contraction of the class of plaintiffs affected by the provisions

of that statute, ^^^ but the court's concern remains valid nevertheless in

cases where the contributory negligence defense would not have been

entertained at common law.
If the Comparative Fault Act is interpreted as totally incorporating

incurred risk into "fault," the differences between incurred risk and

contributory negligence found to be important by the Haun court will
be nulHfied. If this interpretation prevails in a guest statute case, for

example, a defendant will be able to invoke the apportionment function

of the Act by showing that the plaintiff incurred the risk because his

conduct did not conform to the reasonableness standard. Contrary to

the principle set down in Haun, however, where "[t]he 'unreasonableness'
of the conduct is not determinative, "^^^ the reasonableness standard under

this interpretation becomes determinative in such a case. The plaintiff's

"constructive" knowledge and objectively attributed appreciation of the

risk would be determined by application of the reasonably prudent person

standard instead of the subjective standard of actual knowledge and

appreciation. The defendant would argue that no one in the plaintiff's
position could have failed to have seen and appreciated the risks presented

^^The 1984 amendment to the guest statute limits the class of persons subject to the

statute to the parents, spouse, child or stepchild, brother or sister of the driver and

hitchhikers. Act of Mar. 1, 1984, Pub. L. No. 68-1984, Sec. 2, § 1, 1984 Ind. Acts 925,

925-26 (codified at Ind. Code § 9-3-3-1 (Supp. 1984)).
'^^Kroger Co. v. Haun, 177 Ind. App. 403, 419, 379 N.E.2d 1004, 1014 (1978).



786 INDIANA LAW REVIEW [Vol. 17:687

by the defendant's willful, wanton, and reckless driving. Defendant could

make such an argument to the jury in spite of the lack of subjective
awareness, appreciation, or voluntariness in plaintiff's encounter with

the risk. In essence, the plaintiff's right to compensation will be limited

by the degree to which he was negligent in encountering the risk. This

importation of contributory negligence into guest statute cases would

represent a substantial expansion of defendants' abilities to defeat such

causes of action. It would set up the anomalous possibility for a defendant

to argue that the more patently culpable her acts were, the greater the

reason that the plaintiff should have known and appreciated those acts
as a risk. On the other hand, since the reasonableness standard puts to
work the apportionment principle, ^^^ some plaintiffs who surely would
have lost their case at common law for having incurred the risk will,
under this interpretation, recover something for their injuries. So con-

strued, the Act also expands the abilities of plaintiffs to recover in guest

statute actions.

Cursory analysis might result in the conclusion that since plaintiffs

as well as defendants are benefited by this interpretation, the interests

of both sides of the issue are addressed, there is a theoretical washout,

and the construction of the statute should stand as a valid one. However,

recall that plaintiffs suing subject to the guest statute have a higher

threshold to cross in order to establish liability at all.^^^ Requiring

plaintiffs to satisfy a more rigorous basis for liability and then permitting

defendants subject to such liability to escape part of it by proving mere

unreasonable conduct by plaintiffs results in a balance of interests drast-

ically different from that struck by the adoption of the guest statute.

It may turn out in actual operation that because the trier of fact would
be "comparing" mere negligence with wanton or willful misconduct

plaintiffs will suffer no significant diminution in recovery. The fact that

"''If a plaintiff subject to the Haun court's view of "primary" incurred risk is
permitted to escape the total bar upon the logic that "incurred risk" is unqualifiedly part

of the system of comparative fault by virtue of its inclusion in the definition of "fault,"

and that comparative fault results in a total bar only if the plaintiff's "fault" exceeds

50% of the "total fault," such a plaintiff is likely to press the logic to argue that he
was not at "fault" at all because he acted reasonably in his risk-incurring behavior, or

that even if he was at "fault" by incurring the risk, he was less at "fault" than the

defendant because he acted reasonably and she did not. The variations are limited only

by the range of an advocate's imagination. The point is not that the total inclusion of

incurred risk into the apportionment principle necessarily invokes an evaluation of the

reasonableness of the plaintiff's conduct. Rather, it is that such an inclusion permits the

reasonableness of the plaintiff's conduct to be evaluated under circumstances where a

nonfault-based view of incurred risk would prohibit such an evaluation. See generally 2

F. Harper & F. James, supra note 307, § 21.1, at 1164-65; W. Prosser, supra note 306,
§ 68, at 447.

^^he Indiana guest statute requires these plaintiffs to prove "wanton or willful
misconduct." Ind. Code § 9-3-3-1 (Supp. 1984).



1984] FIRST GLANCE 1H7

plaintiffs were subject to no reduction at all, even when they were

negligent, prior to the adoption of comparative fault, is reason enough

for the courts and the legislature to observe the operation of the ap-

portionment principle carefully with a view to ensuring that the objectives

of both statutes are fairly served.

The observations of the Haun court are valid on a much broader
and more important scale. Having discerned that the basis of account-

ability for incurred risk is not fault, the court attempted, through its

guest statute discussion, to demonstrate that under some circumstances

where the fault-based defense of contributory negligence with its total

bar may be stripped away, the nonfault based accountability of incurred
risk remains unaffected. The Comparative Fault Act calls into play those

same considerations. The Act has stripped away the fault-based total

bar of contributory negligence, replacing it with the apportionment prin-

ciple. Whatever the policy and philosophical orientation the incurred

risk defense might reflect in Indiana, the Haun court gave currency to
it and insisted upon analytical separation of the defenses. The ''total

inclusion" interpretation of the Comparative Fault Act would discard

the Haun definition of incurred risk and treat the defense as an open-
ended element of "fault." Adoption of a comparative fault system brings

about certain drastic changes in the process for adjusting the rights of

individuals who have become involved in a relationship of nonconsensual
Hability. It does not mean that common law concepts of tort law which
do not have fault as their foundation should automatically be transformed

into fault-based concepts, even where the concept has been included in

a definition of "fault."

Certain aspects of the Act belie a legislative attempt to fundamentally

overturn Indiana case law. The patchwork drafting job is the first

indication. The background of the Act, after all, is the Uniform Act,

to which "patches" of changes were added and subtracted to suit the

preferences of Indiana legislators and lobbyists. The Uniform Act ad-
dresses a unitary doctrine of the assumed risk defenses which treats all

classes of plaintiffs alike, whether related by contract or not. There is

no evidence that the Indiana legislature departed from the Uniform Act's

poHcy and philosophical positions on the intended effects of assumption

of risk in any respect. In addition, the adoption of a "modified" system

of comparative fault hardly represents the shift in policy and philosophy

necessary to support the argument for abandonment of the total bar in

incurred risk for all cases. The total bar of a plaintiff's action under
some circumstances remains an important feature of the Act. Legislation

purported to have such a drastic effect upon the common law as the
total transformation of incurred risk into comparative fault ought to

display more intrinsic evidence of a legislative intention to overrule the
common law than the two words "incurred risk" tucked into the carefully



788 INDIANA LAH REVIEW [Vol. 17:687

turned phrases of an act intended as a model for a different system/^^

2. Reconciling ''Fault" and Nonfault.—Other problems associated
with the inclusion of the unqualified term "incurred risk" in the definition

of "fault" are solved differently by the two alternative interpretations.

Consider a case where P observes D's risk-producing conduct and per-
ceives the potential for his own benefit if he can continue the observation.
D sees P begin to get too close and stops the activity. P says to D:
"I see that your conduct produces a risk of harm to me and that the
harm may be very serious, even fatal. However, your conduct has great
value to me and I am willing to take that risk upon myself. I relieve
you of any duty of care toward me. Please continue as you were doing. "^^'

If the Haun case is incorporated into the Act's inclusion of incurred
risk, P will have expressly relieved D of the duty of ordinary care and
could not complain of D's injurious conduct. ^^'^ Whether P's conduct

was fault-ridden is irrelevant, and the effect of that conduct is to remove

Z)'s conduct from the realm of fault. No fault of P or i) would exist
to be compared.

The matter is much more compHcated under the "total inclusion"
interpretation. Calling P's incurral of risk "fault" does not change the

issue of whether he placed the risk of injury within the realm of his

personal responsibility. In this setting, he either took on that responsibility

or he did not. Translated into the new rubric of "fault," one view of
the situation is that P was either 100% or 0% at "fault," because he
either incurred the risk or he did not. If this view prevails, however,

the apportionment principle will have been rendered a nullity, and some
pressures will be exerted in litigation to incorporate the old reliable

reasonableness standard to avoid one-sided results.

Plaintiffs' counsel, facing the possibility of a 100% "fault" as-
sessment for their clients in an "express" "primary" incurred risk case

^*The 1984 amendments to the Act also removed other nonfault-based concepts from

the definition of "fault" with the deletion of strict liability and warranty from the definitions

section. Without an official legislative history, it is risky to attach any significance to

this modification of the Act beyond the mechanical change of language. However, the

deletion does show that the legislature is not yet ready to extend comparative fault into

causes of action founded upon theories of accountability having no basis in fault. This

reluctance to blend the two bases of accountability in one context may be reason enough
to look for strong evidence of an intention to bring about such a blend in other contexts.

Such evidence does not exist in the simple language of the definitions section. Act of

Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 1, § 2(a), 1984 Ind. Acts 1468, 1468-69.

'""Readers who simply cannot proceed further without sufficient detail to make the
hypothetical "concrete" may wish to assume that Z) is a knifethrower practicing her art.
P is a photojournalist who sees a peculiar human interest angle or an especially interesting
play of light and believes he must get within the range of the flying knives to get the

"perfect shot."

'"^See the Haun court's discussion, 177 Ind. App. at 414-16, 379 N.E.2d at 1011-

12.



1 984] FIRST GLANCE 789

such as this, will surely try to blunt that possibility by arguing the

reasonableness of their clients' conduct. In effect, even though the

defendant theoretically would have the option of satisfying the incurred

risk elements by using the subjective or objective standard, the objective

standard will always creep into the case. Pragmatically, contributory

fault will have completely swallowed up the incurred risk defense. The

trier of fact will have to consider the circumstances of each case in a

manner similar to that necessary to resolve issues of contributory neg-

ligence in order to reach the determination of reasonableness. The degree

of unreasonableness of the plaintiff's conduct will be translated into a

percentage of accountability assigned in accordance with the usual ap-

portionment procedures of the Act.

What is most noticeable about this operation is that it is not me-
chanically necessary, indeed, it may actually be impossible to assess the
fault of the defendant during the process. The defendant's percentage

of "fault" will have been reached by deduction: lOO^o minus plaintiff's

degree of unreasonableness equals defendant's "fault." This would be

mathematically true in spite of the fact that under ancient concepts of

tort liability the defendant was simply not at fault.

Aside from the effect upon the apportionment process that the "total

inclusion" interpretation has, consider the effect upon the actors' con-

duct. It requires the defendant to consider what she knows about the

plaintiff's circumstances before continuing with her risk-producing con-

duct. If she knows enough about those circumstances to conclude that

the plaintiff's conduct is unreasonable and is secure in her belief that

a trier of fact would agree with her, she may proceed with the conduct
knowing that the plaintiff will be at least partially accountable for any

injuries that result. If her assessment of the situation produces the beUef

that the plaintiff could be found to have acted reasonably in incurring

the risk, the defendant would be foolish to proceed as if she had been

relieved of her duty. Even assuming the improbable, that actors will

develop a sufficiently sophisticated understanding of the technical niceties

of such an interpretation and then decide upon their course of conduct
in accordance with that understanding, this interpretation presents a

rather unorthodox framework to aid human judgment.
3. Differential Treatment of Assumed and Incurred Risk Defen-

ses.—Serious difficulties are present in both interpretations because of
the differences in the Act's operation upon assumed and incurred risk

defenses. With respect to the "limited inclusion" interpretation, the

difference is that the defendant may establish "implied secondary" as-
sumption of risk by proving the unreasonableness of the plaintiff's

conduct, whereas the defendant in an incurred risk case must prove

actual subjective knowledge, appreciation, and voluntariness. Further-

more, if the defendant fails to prove unreasonable assumption of risk,

the plaintiff recovers fully. In the incurred risk context, it does not



790 INDIANA LAW REVIEW [Vol. 17:687

matter how reasonable the plaintiff's conduct was, satisfaction of the
incurred risk elements totally bars the plaintiff's recovery.

In a case involving two plaintiffs whose behavior was identical suing

the same defendant for the same negligent act, a court following this

interpretation would be required to instruct the jury differently concerning

the first plaintiff who happened to be the defendant's tenant, for example,
than it would concerning the second, who was not. The jury would be
told that the first plaintiff's behavior could be evaluated using the

objective reasonably prudent person standard on the question of whether

he assumed the risk. It would be told that the reasonableness of the

second plaintiff's behavior is irrelevant, and that they can find he incurred

the risk only if he subjectively knew, appreciated, and voluntarily en-

countered the risk.

The old distinction based upon the existence of a contractual re-

lationship between the parties does not sustain the difference in treatment.

Since the unreasonable assumption of risk defense would be available

to contracting parties only when the express contractual terms fail to
address the risk-producing the injury, the determination of who is to
benefit from apportionment, whether plaintiff or defendant, has no

logical connection to the contractual relationship. In practical terms, on

the issue of whether the plaintiff consented to the risk, the contractually-

related parties are on the same footing as the nonrelated parties. The

new system of comparative fault should not operate so differently between

cases simply because one set of litigants happens to have entered a

contract and another set has not.

The legislature would have done better to have incorporated incurred

risk into the definitional phrase borrowed from the Uniform Act and

expanded the definitions section to clearly state an intention to sweep

"implied secondary" consent to the risk into comparative fault. One
possible way to accompHsh this would be to incorporate the following
terminology into the definitions section of the Act:

"Fault" includes . . . unreasonable assumed or incurred risk not

constituting an enforceable express consent ....

"Assumption of risk" and "incurred risk":

(1) include only the "implied secondary" senses of those terms,

that is, where those terms denote that plaintiff cannot be

said to have actually known, appreciated, and voluntarily

encountered a risk produced by the negligence of defendant,

but only impliedly has done so.

(2) do not include the "primary" senses of those terms, that

is, where those terms denote that plaintiff's conduct has

the effect of relieving defendant of a duty or breach of

that duty.

(3) shall invoke the apportionment of damages provisions of

this Act if and only if:



1984] FIRST GLANCE 791

(a) the
*

'implied secondary" sense of the terms apply to

plaintiff's conduct, and

(b) plaintiff's conduct has been deemed unreasonable by

the trier of fact.

(4) shall remain as a complete defense to plaintiff's action in

any case where the senses of:

(a) "express or implied primary" assumed or incurred risk,

or

(b) "express secondary" assumed or incurred risk apply

to the circumstancees giving rise to plaintiff's claim.

The suggested provisions are complex, but the issues raised in the

relationship of the nonfault assumption of risk defenses to a comparative

fault system are themselves complex, as this discussion has demonstrated.

The suggestions definitely spell out their intention to partially overrule

Haun and to ensure the consistent operation of the apportionment
principle in the troublesome area of "overlap" between the assumption

of risk defenses and contributory negligence.

The Haun court made a commendable effort to articulate a theoretical
separation between the two defenses and in that effort did much to
dispel the theoretical confusion that had persisted in the case law. It

operated, however, only in the realm of the theoretical. The court was

called upon only to decide whether plaintiff Haun could have been found
to have incurred the risk or to have been contributorily negligent as a

matter of law. Applying its analysis, it found enough doubt in the record

to answer the questions in the negative. It did not have to perform the

more difficult task of deciding as a matter of fact whether Haun incurred
the risk or was contributorily negligent. As demonstrated in an earlier
section of this Article, the trier of fact will likely have much difficulty
maintaining an analytical distinction between the defenses. "^^^ A jury's
decision, made in secret behind the deliberation room door, is more
likely to be influenced by the jury's collective experience and common
sense than by a theoretical distinction which is difficult to grasp and

even more difficult to apply. "^^"^ Perhaps it is time that the law of

comparative fault follow experience in this category of cases. The pro-

posed modification permits the jury to find the elements of incurred

risk to be satisfied by the application of objective criteria and the

reasonableness standard in cases of "implied secondary" incurred risk,

that most troublesome of areas where contributory fault and the as-

sumption of risk defenses "overlap." At the very least, the General

Assembly should define "fault" in this regard to include "unreasonable

assumed or incurred risk not constituting an enforceable express consent."

"""^See supra text accompanying notes 396-400.
*^The difficult guest statute cases of concern to the Haun court remain troublesome,

but perhaps not as much as one might suspect. First, since "reasonable impHed secondary"
assumption of risk does not bar recovery, and since "willful, wanton or reckless" acts



"92 INDIANA LAW REVIEW [Vol. 17:687

Much of the foregoing discussion concerning the different treatment
of risk-assuming and risk-incurring plaintiffs appHes to the "hmited

inclusion" interpretation. The differences permitted under the "total

inclusion" interpretation, however, are more drastic and much less sup-
portable. Since this construction permits risk-incurring plaintiffs to invoke

apportionment when they have incurred the risk in any of the senses

employed in this discussion, ^^^' such plaintiffs enjoy a marked advantage

over their risk-assuming peers who receive apportioned recovery only in
the "implied secondary" category of cases. Conversely, plaintiffs who
reasonably assume the risk in the "implied secondary" category are

entitled to full recovery while all risk-incurring plaintiffs are subject

either to apportionment or a total bar.

Consider an example where plaintiff A and defendant C are con-
tractually related, but plaintiff B and the same defendant are not so
related. If A's contract with C contains provisions sufficient to satisfy
the assumption of risk elements, he can invoke the apportionment prin-

ciple only by establishing the unenforceability of the provisions as an

invalid exculpatory clause. Plaintiff B, on the other hand, who may
have orally consented to the risk in the same terms as used by ^, is

spared the burden of proving unenforceability, and is permitted to benefit

from the application of the apportionment principle.

The reasons for rejecting this difference in treatment of risk-assuming

and risk-incurring plaintiffs are the same as discussed in connection with

the "limited inclusion" interpretation. Since the differential treatment

here encompasses a broader segment of cases, however, the reasons for

avoiding the effect are multiplied by the number of possibilities where

the difference could arise. There is simply no firm basis in logic, policy,

fairness, or precedent for permitting one plaintiff to benefit from ap-

portionment while another plaintiff presenting virtually the same facts

as the first is totally barred merely because the second plaintiff happened

to have entered into a contract with the defendant.

These comments should not be construed as an argument for sweeping

all of assured risk into comparative fault as the "total inclusion" inter-

pretation would do with incurred risk. All that has been said that is

critical of the total inclusion of incurred risk applies with equal force

to the total inclusion of assumed risk. The total inclusion of incurred

are specifically made subject to the apportionment principle, the trier of fact is given

much greater leeway to adjust the accountability and Hability of the risk-incurring plaintiff

and the willful and wanton defendant than it could have exercised under the negligence

system at the time of the Haun decision. Second, if the courts view the guest statute as
a declaration of the policy that gratuitous passengers in motor vehicles impliedly assume

the risks of negligent operation of those vehicles as inherent risks and that drivers are

legislatively relieved of the duty of care to those passengers, they might conclude that

such a defendant has already benefited from a legislatively applied concept of incurred

risk and instruct the jury accordingly.

^^'That is, "express" or "implied," and "primary" or "secondary."



1984] I IRST CiLANCE 793

risk presents problems enough, but assumption of risk cases add the

compHcation of attempts by the parties to regulate their conduct through

contract. In some of those cases the parties will have addressed the

riskiness of the activity involved in the transaction and will have attempted

to allocate those risks between them. Suppose, for example, that X
validly contracts with Y to receive the benefit of y^s services. Part of
the contract expressly relieves F of a duty of ordinary care toward X.
If the Comparative Fault Act includes all of assumed risk in the definition

of "fault," application of the Act under the rubric of "fault" presents

some problems if X is injured and reneges on the contract not to
sue Y.

It is doubtful that the parties would agree in advance that X would
take on a stated percentage of risk as "fault" or, if they had, would

expect the trier of fact to be bound by that clause. Upon what other
basis may a jury return a verdict that proclaims X assumed only a
portion of the risk? Even if the jury is permitted to infer that the

contract or some other factor permits a determination of the percentage
of the risk that has been assumed, what is the conceptual basis for

presuming that an assumption of N^o of the risk is equivalent to an
equal percentage of contributing fault? If X obtains a verdict against
Y, does Y then have a breach of contract action against X for the
amount of damages he was compelled to pay X in the tort claim, plus
the cost of defending? If X knows of and appreciates a danger, and
specifically contracts for a benefit in a way which addresses that danger,
the common law-trained mind tends to rebel at the suggestion that ^s
conduct amounts to fault. A contract against public policy is one thing;
a valid, expressed release of duty is another. An unqualified inclusion
of assumed risk in the definition would resurrect a duty the law and

the parties themselves had previously declared extinguished.

The above problems aside, there remains the difficulty of requiring

the jury to translate ^s contractual assumption of risk into the de-
fendant's "fault." Assuming that they can do so, or at least act as if

they can, a finding that the plaintiff is at "fault" does not compel the

conclusion that the defendant is at fault. The statute does not purport

to change the basis of liability, and the jury should not be permitted

to assume that since the plaintiff is deemed to be something less than

100% at "fault" then the defendant must have been at "fault" for the
remainder. The Act's suggested instructions require the jury to reach a

verdict by multiplying the defendant's percentage of "fault" by the total

amount of damages. Those instructions only imply that the jury is to

determine the defendant's "fault" through independent evaluation. They

do not explicitly prevent the jury from deducing that the defendant was

at "fault" by assuming that whatever proportion of "fault" remaining

after computing the plaintiff's contribution belongs to the defendant. ^'^^

^See supra text at 789 (first full paragraph).



794 INDIANA LAW REVIEW [Vol. 17:687

We may not need to know precisely how juries perform their official
duties. We probably cannot do otherwise but to trust them to do their
best in accordance with their own understanding of the law and what
is fair, and to believe that they will, within their peculiar combination

of experiences, reach just decisions. Those observations are not satis-

factory reasons to expect a jury to be able to translate a vahdly assumed

risk into some artificial proportion of "fault." In asking a jury to

evaluate human conduct and assign a judgment of "fault" to that
conduct, we are asking its members to do more than simply decide
whether a fact exists or not; we are asking them to evaluate those facts
in accordance with what the law requires of their peers. This analysis

has shown that the Indiana Act's definition of "fault" is imprecise,

inconsistent, and thereby confusing in its declaration of what the new

"fault" to be compared is. The ambivalence of the General Assembly

toward the apportionment principle has crept into the definitions section,

and will muddle application of the statute if not corrected by amendment
or interpretation. A procedure that permits the jury to assign account-
ability on the basis of fault without assisting it in understanding the

meaning of "fault" allows it to act without regard to law. A system
which requires the jury to perform a transformation of fault and nonfault

concepts into judgments of "fault" without guidance from fundamental

principles of law invites confusion and frustration. Our system of tort
law has long recognized more than one basis for accountability. The

predominance of fault as one of those bases should not obscure the

reasons for the creation and refinement of a nonfault basis. There are

circumstances in our society where it is proper that a person be fully

accountable for the injuries that have befallen him without reference to

the faultiness of that person's conduct. The assumption of risk defenses

have been a legal device for enforcing that responsibility. The fact that

some courts in the past have not performed their tasks well in applying

those defenses is not a good reason for discarding or transforming the

defenses. The defenses should not be incorporated wholesale into com-

parative fault simply on the basis of a momentum established in moving
toward the apportionment principle. The Indiana General Assembly has

failed to pay heed to the common law development of the assumed risk
defenses in this state. As a result, the Indiana Act fails to address those
defenses with needed precision and consistency. As this discussion has
demonstrated, adequate conceptual separation between the segments of

assumed and incurred risk that "overlap" with fault and those that do

not can be maintained. The areas of "overlap" should be subject to
the apportionment principle. The areas that do not involve fault should
be left out of comparative "fault."



1984] FIRST GLANCE 795

IV. Plaintiff's Failure to Employ Safety Precautions as

"Fault": The Doctrine of Avoidable Consequences
AND THE Seat Belt Defense

Section two presents two phrases which raise the issue of whether

the Act will permit defendants to invoke the apportionment principle

by proving that the plaintiff failed to use an available safety device.

The Act's definition of "fault" includes the "unreasonable failure to

avoid an injury, '"'^^ which could simply be interpreted as a breach of

a duty to prevent harm. However, this interpretation would render the

encompassing phrase redundant in light of the section's preceding phrase

"any act or omission that is negligent. "'*°^ The former phrase, then,

must carry a meaning different from primary or contributory negligence.

The same phrase was included in the Uniform Act.'^^^ The commissioners'

commentary does not explicitly expand the phrase's meaning, but simply

states: "The doctrine of avoidable consequences is expressly included in
the coverage. '"'•^ Because the phrase "unreasonable failure to avoid an

injury" may be taken as the "express inclusion" of the doctrine of
avoidable consequences,"^" a strong inference arises that the Indiana Act

has codified the doctrine. Accepting the inference that the Act has adopted

the avoidable consequences doctrine, however, is not tantamount to

accepting the suggestion that the Act recognizes the failure to employ

safety devices as a defense invoking the apportionment principle. The

seat belt defense, which has received most of the recent attention in the

case law, will be the focus of this discussion, but the analysis would

apply in other cases in which available safety precautions are not used.*^'^

^°lND. Code § 34-4-33-2(a) (Supp. 1984).
'''Id.

"^Unif. Comparative Fault Act § 1(b), 12 U.L.A. 35, 37 (Supp. 1984) [hereinafter
cited as Uniform Act].

"'"M commissioners' comment at 38.
"" 'Although "unreasonable failure to avoid an injury" is not a precise statement of

the doctrine, there is no other use of "avoid" in the Uniform Act's definitions section,

so the "express inclusion" is taken to be that phrase.

"'^In recent years, cases in which the plaintiff has failed to employ an available safety

precaution or device such as automobile seatbelts or a motorcycle helmet have received

much attention in discussion of the doctrine of avoidable consequences. See Bond v. Jack,

387 So. 2d 613 (La. Ct. App. 1980); Rogers v. Frush, 257 Md. 233, 262 A.2d 549 (1970);
Burgstahler v. Fox, 290 Minn. 495, 186 N.W.2d 182 (1971); Dean v. Holland, 76 Misc.
2d 517, 350 N.Y.S.2d 859 (Sup. Ct. 1973); Halvorson v. Voeller, 336 N.W.2d 118 (N.D.

1983); Brown v. Smith, 604 S.W.2d 56 (Tenn. Ct. App. 1980). Cf. O'Donnell v. United

States, 428 F. Supp. 629 (D. La. 1977). See generally Note, Helmetless Motorcyclists—
Easy Riders Facing Hard Facts: The Rise of the "Motorcycle Helmet Defense," 41 Ohio
St. L.J. 233 (1980). In such cases, the defendant argues that the plaintiff's failure at

least aggravated the plaintiff's injury. See cases cited infra notes 416-47. See generally



796 INDIANA LAW REVIEW [Vol. 17:687

The seat belt defense, which Indiana appellate courts have rejected/'^

has had mixed treatment in other jurisdictions. Under traditional con-

tributory negligence analysis, the main problem in seat belt cases is that

the defendant must prove that the plaintiff's faulty conduct caused or

contributed to the injury-producing event. If the injury-producing event

is viewed as the tortious contact caused by the defendant's conduct, the

plaintiff's failure to use protective devices will rarely help produce that

contact."*'"* Even if the injury-producing event is viewed as the "second

collision" of the plaintiff's body with the interior of the automobile or

with some object after the plaintiff is thrown from a vehicle,"*'- the

defendant must, nevertheless, estabhsh a duty to fasten seat belts and

a breach of that duty. Courts have generally been reluctant to find such

a duty.-*'^ Courts have offered the following reasons for this reluctance:

(1) the jurisdiction's legislature does not impose the duty;"*'^ (2) the state

law does not require seat belts in all vehicles;'*'^ (3) the efficacy of using

seat beks is doubtful;"*'^ (4) the expert testimony needed to address the

question of whether or not the plaintiff would have incurred the injuries

if he had used a seat belt produces delay and expense in trials. ''^^

To circumvent the courts' resistance to the contributory negligence
theory, defendants, whose essential argument is that the plaintiff would

have suffered injuries to a lesser degree had the seat belts been worn,

have framed the seat defense in terms of the avoidable consequences

doctrine. This doctrine"^^' prevents the plaintiff from recovering damages

that could reasonably have been avoided. "^^^ Usually the doctrine is

invoked where the plaintiff, after incurring an injury, has refused or

neglected to obtain treatment for an injury, and subsequently complains

Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241 (2d Cir. 1981); Sullivan, The Seat Belt

Defense Should be Resurrected Under Pure Comparative Negligence, 61 Mich. B.J. 560

(1982); Walker & Beck, Seat Belts and the Second Accident, 34 Ins. Couns. J. 352 (1969).
^"State V. Ingram, 427 N.E.2d 444 (Ind. 1981); Volkswagenwerk v. Watson, 181 Ind.

App. 155, 390 N.E.2d 1082 (1979); Rhinebarger v. Mummert, 173 Ind. App. 34, 362

N.E.2d 184 (1977); Birdsong v. ITT Continental Baking Co., 160 Ind. App. 411, 312

N.E.2d 104 (1974); Kavanagh v. Butorac, 140 Ind. App. 139, 221 N.E.2d 824 (1967).
'''E.g., Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311 (Sup. Ct. 1982).

"-Walker & Beck, supra note 412.
"'£.g., Lipscomb v. Diamiani, 226 A.2d 914 (Del. Super. Ct. 1967); Volkswagenwerk

V. Watson, 181 Ind. App. 155, 390 N.E.2d 1082 (1979); Dziedzic v. St. John's Cleaners

& Shirt Launderers, Inc., 53 N.J. 157, 249 A.2d 382 (1969). See also cases cited infra
notes 417-19.

'''E.g., State V. Ingram, 427 N.E.2d 444 (Ind. 1981).

''"^E.g., Derheim v. N. Fiorito Co., 80 Wash. 2d 161, 492 P. 2d 1030 (1972).

''•*E.g., Amend v. Bell, 89 Wash. 2d 124, 570 P. 2d 138 (1977).
'"'E.g., id.; Derheim v. N. Fiorito Co., 80 Wash. 2d 161, 492 P.2d 1030 (1972).

"^The avoidable consequences doctrine is based on the principle that the law functions

"not only to prevent and repair individual loss and injustice, but to protect and conserve

the economic welfare and prosperity of the whole community." C. McCormick, Damages

127 (1935).

""/cf.; see also D. Dobbs, Remedies 186 (1973).



1984] FIRST GLANCE 1^1

of the original injury plus the aggravation produced by the lack of

treatment/^^ More generally, the doctrine applies where the defendant's

negligence exposes the plaintiff to a risk of injury, and the plaintiff

fails to take reasonable steps to protect his interests
/^^

Defendants, seeking to draw an analogy between these situations

and cases where the plaintiff did not wear seat belts, argue that the

plaintiff could have reasonably avoided his injuries by doing so. A small
number of jurisdictions have found the argument persuasive, "^^^ but the

argument has generally floundered upon the distinction that the doctrine

of avoidable consequences is appUcable to the plaintiff's conduct after

the defendant's negligence has occurred/^^ Two closely related principles
bear on the courts' refusal to extend the avoidable consequences doctrine

to seat belt cases: (1) reasonableness only requires the plaintiff to take

self-protective action where there is knowledge of the facts requiring

such action;"*^^ and (2) a person need not take self-protective action in

the face of a threatened future wrong/^^ The weight of these principles,
in addition to the reservations courts have expressed regarding the con-

tributory negligence theory,'^^^ have led courts to reject the avoidable

consequences doctrine in seat belt cases. Consequently, the courts have

deferred to the legislature for any change. "^^^

Some courts view the admission of the seat belt defense as tantamount
to an adoption of comparative negligence, and reject the defense when
comparative negligence principles are not available. "^^^ With Indiana's

adoption of comparative fault, therefore, one might argue that the

""See, W. Prosser, Handbook of the Law of Torts § 65, at 422-24 (4th ed. 1971),
and cases cited therein.

^^^See 2 F. Harper & F. James, The Law of Torts § 22.10, at 1232 (1956).
^"Pritts V. Lowery Trucking, 400 F. Supp. 867 (W.D. Pa. 1975); Mount v. McClellan,

91 111. App. 2d 1, 234 N.E.2d 329 (1968); Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d

164, 363 N.Y.S.2d 916 (1974); Bentzler v. Braun, 34 Wis. 2d 362, 149 N.W.2d 626 (1967)

(failure to use seatbelt is question for jury, but defendant failed to produce evidence of

causal connection between injuries and failure to wear seatbelts); see also Halvorson v.

Voeller, 336 N.W.2d 118 (N.D. 1983) (failure to wear motorcycle helmet admissible to

reduce damages so long as expert testimony available to show use of helmet would have

lessened injuries).

'^^E.g., State V. Ingram, 427 N.E.2d 444 (Ind. 1981). See generally W. Prosser,
supra note 423, § 65, at 423. Nevertheless, Dean Prosser equates contributory negligence

and avoidable consequences. Id. at 424.

*2'D. DoBBS, supra note 422, at 188; C. McCormick, supra note 421, at 140-41.

Professor Dobbs suggests that this limitation is perhaps not quite equivalent to the objective

knowledge standard in primary negligence theory, and that subjective attributes of the

plaintiff may be considered more important in this context. Professor McCormick states

the limitation more in terms of a traditional objective standard.

''^*C. McCormick, supra note 421, at 137.

*^^See supra notes 417-20 and accompanying text.

''''E.g., State V. Ingram, 427 N.E.2d 444 (Ind. 1981).

'''E.g., Birdsong v. ITT Contintental Baking Co., 160 Ind. App. 411, 312 N.E.2d
104 (1974); Derheim v. N. Fiorito Co., 80 Wash.2d 161, 492 P. 2d 1030 (1972).



798 INDIANA LAW REVIEW [Vol. 17:687

legislature has admitted the seat belt and similar defenses. This prop-

osition would, of course, require a second argument that the legislature

either has established a duty to fasten seat belts, despite the common
law refusal to recognize such a duty, or that the legislature has modified

the doctrine of avoidable consequences, effectively overruHng the judicial

obstacles to its application.

The defendants' arguments are fraught with difficulties. First, there

is the matter of establishing the failure to use a seat belt as fault. "^^^

While the Act's definition of "fault" has rather liberally incorporated

concepts of liability which are not traditional notions of fault,*" the

Act has not departed so far from those traditional notions as to create

liability where none attached before. The defendants' argument would

have to rely on the phrases "any act or omission that is negligent,"'*^'*

"unreasonable failure to avoid injury, "'^^^ and "injury attributable to

the claimant's contributory fault'"^^^ to satisfy the court that a new duty

to employ a safety precaution is raised by the Act. A duty raised by
operation of statute is no stranger to the judicial mind,^^^ but the

Comparative Fault Act hardly seems specific enough to estabhsh a

standard of conduct which provides foundation for an argument of a

duty to wear seat belts, especially in light of the judicial refusal to find

such a duty even with legislative requirements to have automobiles

equipped with seat restraints. ^^^

Even if the defendant overcomes the "duty" hurdle, the difficulty

of establishing the causal connection required for apportionment remains.

The Act specifically provides that "legal requirements of causal relation

apply to . . . contributory fault, "'^^^ and the jury is permitted to apportion

only with respect to fault that has "contribut[ed] to cause the . . .

loss."'*^° This language clearly indicates that the defendant must prove

some causal connection between the plaintiff's "fault" and the injury

"-Compare the approach of the courts in Illinois and North Dakota, which permit

evidence of the omitted safety precaution to be admitted only on the issue of damages,

and consider it irrelevant on the issue of liability. E.g., Wagner v. Zboncak, 111 111.

App. 3d 268, 443 N.E.2d 1085 (1982); Halvorson v. Voeller, 336 N.W.2d 118 (N.D.

1983).

^^^See supra text accompanying notes 35-49.

^^^IND. Code § 34-4-33-2(a).
*''Id.

''''Id. § 34-4-33-3.

""See generally 2 F. Harper and F. James, supra note 424, §§ 17.5-17.6; W. Prosser,
supra note 423, § 36; Restatement (Second) of Torts §§ 285, 286 (1965).

'''E.g., Rhinebarger v. Mummert, 173 Ind. App. 34, 362 N.E.2d 184 (1977) (Buchanan,

J., concurring). See generally Leonard, The Application of Criminal Legislation to Neg-

ligence Cases: A Reexamination, 31 Santa Clara L. Rev. 427 (1983).
""Ind. Code § 34-4-33-l(b).

*^Id. § 34-4-33-5(a)(l). This discussion of proof of causation does not contradict

prior assertions that percentages should not be calculated by comparison of contributions

to causation. See supra text accompanying notes 51-54.



1984] FIRST GLANCE 799

which the defendant would attribute to that "fault. "'^'^' The defendant

may be able to present evidence of the extent to which the plaintiff's
omission aggravated the injuries. However, if experts are required, the

defendant faces the hurdle of convincing the courts that the additional

delay and expense of such testimony are necessary costs as a matter of

policy.
^^^2

A second approach holds little hope for defense counsel. This ar-
gument proceeds on the premise that the Act expands the avoidable

consequences doctrine and, in that expanded form, overcomes the judicial

refusal to adopt the seat belt defense. This argument's support rests on

the mere fact that the Act's language is different from "avoidable

consequences." Since the word "injury" seems more specific than "con-

sequences," the defendant might contend that the use of such specificity

in the phrase "avoid an injury" is evidence that the legislature contem-

plated seat belt cases when it chose the phrase. Had the legislature
intended to merely codify the common law rule, it would have used the
phrase "avoidable consequences." The defendant would argue that the

legislature's choice of different language indicates its intent to overrule

restrictive judicial applications of the avoidable consequences doctrine.

Failure to fasten one's seat belts would be characterized as a precise

"failure to avoid an injury." The defendant could further appeal to the

inherent policy of fairness in the apportionment principle, arguing that

defendants should not bear the entire cost of the plaintiff's injuries in

Hght of the Act's poHcy of dividing the responsibility for injuries caused

by multiple acts.

Two considerations, however, substantially weaken the foregoing
argument's persuasive merit. First, the phrase "failure to avoid an injury"

is borrowed from the Uniform Act, and the commissioners "expressly

included" the doctrine of avoidable consequences. "^"^^ Second, the ar-

gument based upon "specific" terms is susceptible to its own logic,
considering the legislature's specific inclusion of other defenses. '^'^'* A
forceful counterargument is that had the legislature contemplated the

safety precaution cases when it was framing the concept of "fault," it
could have and would have inserted more descriptive terminology.

'^'The commissioners' commentary refers to a seat belt defense in a discussion of

causation, not a discussion of "failure to avoid an injury." Uniform Act, supra note

409, at 38. This reference, however, fortifies the position that a defendant must prove

that causal connection if the seat belt defense is recognized.

'''-See Franklin v. Gibson, 138 Cal. App. 3d 340, 188 Cal. Rptr. 23 (1982); Halvorson

V. Voeller, 336 N.W.2d 118 (N.D. 1983).
^'5ee supra note 410.

"""The legislature appended "incurred risk" to the phrase "unreasonable assumption

of risk not constituting an enforceable express consent." There may be some doubt about
what the General Assembly intended to accomplish by these phrases, see supra notes 306-

406 and accompanying text, but the use of common law terminology for defenses makes
clear the reference to specific defenses.



800 INDIANA LAW REVIEW [Vol. 17:687

Even if the defendant's argument survives the duty, causation, and

legislative intent hurdles, the defendant's battle is not won. Since the

phrases upon which the defendant must rely require that the failure to

avoid an injury be "unreasonable,""^'*^ at the very least, defense counsel

is precluded from contending that failure to fasten seat belts is "fault"

per se. Furthermore, the commissioners' commentary suggests that ju-

risdictions should state that "[t]his rule applies whether or not under

prior law the claimant's contributory fault constituted a defense or was

disregarded under applicable legal doctrines."'*'*^ The argument that the

Indiana Act legislatively overrules the common law doctrine suffers greatly
from the omission of that suggested clause.

The leading seat belt defense case in Indiana, Kavanagh v. Butorac,'^'^'^

recognized some merit in the avoidable consequences argument, but found

no authority for expanding the doctrine. The court recognized "the
possibility of the doctrine applying in some future date."^"*^ Without

some modification of the present language of the Comparative Fault

Act, however, defendants face a nearly insurmountable task of providing

that authority. Consequently, the "future date" of the availability of

the seat belt defense likely remains a matter of prophesy.

V. Some Important Omissions

A. Set-Off of Counterclaims

1. Effects of Compulsory Set-Off

.

—Suppose that the plaintiff and
the defendant are traveling at the same rate of speed in their respective

automobiles on different streets. Those streets run perpendicular to each

other and at their intersection there is a four-way stop. The plaintiff

arrives at the intersection at the same time as the defendant and both

fail to heed the warnings to stop. Both drivers sustain property damage
and personal injury to the extent of $10,000 from the collision. The

defendant responds to the plaintiff's comparative fault action with a

counterclaim. As might be expected, the jury finds that each has been
injured in the amount of $10,000 and that each is 50<7o at "fault."
Each then receives a verdict for $5,000 against the other. In the abstract,

the obligations cancel each other out; payment of the judgment by each

would mean that both parties' assets would be depleted by $5,000 and
both sets of assets would be replenished by the same amount. If the

law of comparative fault takes cognizance of this theoretical cancellation

and allows the principle of set-off to operate, each party will collect

nothing and the law will in effect leave the parties where it found them.

However, the abstract situation rarely presents itself in the courtroom.

^'iND. Code § 34-4-33-2(a).
^^''Uniform Act, supra note 409, at 38.

^M40 Ind. App. 139, 221 N.E.2d 824 (1967).
^'Ici. at 149, 221 N.E.2d at 830.



1984] FIRST GLANCE 801

It is far more likely that each of the parties will have obtained some

sort of liability insurance coverage. If setoff is required, the parties

collect nothing, are left to their own devices, and their insurers will

have realized a windfall in the sum of the cancelled obligations plus the

premiums paid on the policies. The result falls far short of the objective

of the comparative fault system to provide even partially at fault actors

at least some compensation for their injuries. Principles of fairness and

individual responsibility are extremely important dements in the com-

parative fault system's refinement of the compensation function of tort

law. A more precise adjustment of tort disputes to fashion a remedy
which better reflects the parties' contributions of fault than was possible

under prior law is the fundamental aim of the system. By adopting the

system, the Indiana General Assembly has moved the law of this state

at least a step away from gross, one-sided, albeit easier, methods of

adjusting torts disputes. If set-off is to be automatically required in real

cases Uke the hypothetical, the system will have literally set part of itself

against another to produce gross, one-sided results that benefit neither

of the injured parties. If the objectives of the liability insurance system

are limited to providing a tortfeasor, at a fair cost of premiums, some

security against the injurious consequences of her inadvertent acts, set-

off produces no difficulty in cases like the hypothetical. The opposing

party's fault, in effect, prevents him from burdening the insured's fi-

nancial integrity with a claim. However, if the insurance system is

supposed to provide those exposed to the risks of others' inadvertent

acts with some assurance of a financially responsible entity to look to
for compensation, "^"^^ then a set-off requirement is dysfunctional. Only

the insurance industry benefits, and at the expense of the people who
have relied upon it for protection.

The hypothetical posing this question should not be lightly dismissed.

It may well present unusual circumstances to establish a point, but other
circumstances in which the parties could be found equally at fault will

not occur so rarely, and the issue of set-off will inevitably arise. The

Indiana Act confers considerable power upon juries to apportion fault
without a great deal of controlling criteria, and it is not farfetched to

expect a jury to "split it down the middle" in a difficult case. Fur-
thermore, although the probability of a case arising where the parties

suffer equal damages is low, one in which both suffer some injury will

^^'The widespread enactment of financial responsibility laws may be some evidence
of the policy of providing protection for accident victims, though not necessarily through

the medium of insurance. Several courts have expressed the policy in the context of
entertaining direct actions by injured parties against insurance carriers. See, e.g., Shingleton

v Bussey, 223 So. 2d 713 (Fla. 1969). See also 8 J. Appleman & J. Appleman, Insurance
Law and Practice § 4862, at 571-78 (1981) and cases cited therein. Yet, the recognition
of such a public policy need not be viewed as dependent upon the right of direct action

by injured parties. See Odolecki v. Hartford Accident & Indem. Co., 55 N.J. 542, 264
A.2d 38 (1970).



so: INDIANA LAW REVIEW [Vol. 17:687

not be so rare, and the latter case presents as serious an issue. Various

combinations of the presence and amount of insurance coverage com-

pound the matter. The failure of the General Assembly to provide a

clear statement of public policy to guide the courts in adjusting disputes

in cases posing these issues is a serious omission in the Act.

2. Effects of Prohibited Set-off.—Differences in the parties' in-
surance coverage or ability to pay a judgment complicates set-off prob-

lems. In the hypothetical just posed, suppose further that the plaintiff

has full insurance coverage and the defendant has none. In this situation,

the wisdom of a prohibition of set-off is drawn into question. If set-

off is not permitted, the uninsured defendant collects her judgment in

full and plaintiff must rely upon the uninsured motorist coverage, if

any, in his own policy if defendant is insolvent. However, to the extent
that the plaintiff is able to obtain satisfaction of his judgment by levying

upon the policy proceeds just paid to defendant, the prohibited set-off

proposition has something to recommend it over the required set-off
proposition. "^^^ At least the person who has prepared for the financial
setback of tortious injuries will be able to realize some protection stem-

ming from that preparation. Nevertheless, certain efficiencies will have

been lost by requiring the plaintiff to pay, then levy upon, the monies

generated by his policy of insurance.

3. Problems of a One- Way Rule in Multiple Party Cases.—As the
number of parties increase and the features of cases multiply with
different combinations of counterclaims, amounts of damage incurred,
and presence or nonpresence of insurance, distortions of the apportion-

ment principle and allocations of financial burden not in keeping with

the objectives of the fault insurance system can result under either a

required or a prohibited set-off rule. As a background for later discussion
of possible solutions, this section will illustrate how these one-way rules
give rise to problems. Consider first a relatively simple situation: P sues
A and B; A counterclaims against P and B; and B counterclaims against
P and A. The jury finds P to be 35% at "fault," A 25%, and B 40%.
Each party's damages before apportionment are $10,000. Since no party's

"fault" is greater than 50% of the "total fault of all the parties," each
obtains a verdict against the others and each is subject to a verdict

obtained by the others."*^' The obhgations resulting from the findings
are represented graphically:

'"'See Jess v. Herrmann, 26 Cal. 3d 131, 141 n.5, 604 P. 2d 208, 213 n.5, 161 Cal.

Rptr. 87, 92 n.5 (1979).

•"'A more graphic representation helps to hold the situation more clearly in mind.

Jury finds:

P- 35% at "fault"; $10,000 damages
A- 25% at "fauh"; $10,000 damages
B- 40% at "fault"; $10,000 damages

Results of Verdict:

P entitled to receive $2,500 from A, but owes A $3,500



1984] FIRST GLANCE 803

Figure #1

Party and
o7o of Fault

Unadjusted

Damages Verdicts

P
(35%)

$10,000 $2,500 against A
4,000 against B

A
(25%)

$10,000 $3,500 against P
4,000 against B

B
(40%)

$10,000 $3,500 against P
2,500 against A

If set-off applies, each situation would be considered separately: P
pays A the difference between the judgment he obtained against A and
the judgment A obtained against him, or $1,000; A receives from B the
difference between the judgments relating to her and B, or $1,500; and

B pays the difference between the judgments relating to him and P, or
$500. The net "recovery" for each would then be: P\ negative $500;
A: $2,500; and B: negative $2,000.

Added to the chart, the results are shown in this manner:

P entitled to receive $4,000 from B, but owes B $3,500
P's receipts $6,500; payouts $7,000 = ($500) net loss

A entitled to receive $3,500 from P, but owes P $2,500
A entitled to receive $4,000 from B, but owes B $2,500
/I's receipts $7,500; payouts $5,000 = $2,500 net recovery

B entitled to receive $3,500 from P, but owes P $4,000
B entitled to receive $2,500 from A, but owes A $4,000
B's receipts $6,000; payouts $8,000 = ($2,000) net loss.



804 I.\DIA.\A LAW REMEW [Vol. 17:687

iL

Nel

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1984] FIRST GLANCE 805

The fact that B comes away with nothing and must carry 66.6^0
of the total actual payout may seem harsh in view of the aims of the
comparative fault system and the fact that he was well under the 50^o

contributory negligence threshold. On the other hand, he has been spared
the additional $6,000 outlay which he would have been required to make

if set-off had been prohibited. Even so, B may still prefer the no set-
off approach if given the choice. That would be true in the case where,

because of injuries or otherwise, B was experiencing cash flow difficulties.
To the extent that he would have the flexibility to adjust his payout
schedule with P and A, the proceeds of judgments received from P and
A might relieve the cash flow problems in order to avoid catastrophe.
At least he has the flexibility to try to work something out. Under the

set-off rule he would have no choice but to pay out the additional

S2,000 from his already severely depleted assets. The point here is that

a set-off requirement tends to be overly rigid and works against the

principle of comparative fault under some circumstances by distorting

the apportionment of compensation. Under these facts the shift in actual

liability has been in favor of A, who is the least "faulty" of the three,
and at the greatest expense of B, who is the most "faulty." However,
the shift is disproportionate to their relative shares of fault.

When full insurance coverage is added to the multiparty hypothetical,
the misallocation effect of set-off is highlighted. For a total liability of

$20,000, only S3,000 will actually be required to be paid out. Considered

in this light, the S17,000 savings to the insurance carriers has come at
the expense of undercompensating three people who had contracted with
each of their carriers to relieve them of the financial burdens of injurious

accidents.

In a case with one party uninsured, a prohibition upon set-off creates
similar misallocation. The various results produced under the hypothetical
facts are illustrated in the chart below. The uninsured pany receives the
full benefit of habiiity insurance coverage by the insured parties, and
the insured parties are left to their own devices to obtain satisfaction
of the uninsured party's obligation to them. If the proceeds of the

insured parties' policies paid to the uninsured party are subject to

attachment, then some of the funds made available by their own insurance
planning will be accessible to the two other injured panics. However,

since this would amount to a nullification of the prohibition of set-off,
and would place an additional burden upon judicial processes, it offers
nothing to recommend it over a requirement of set-off in the original
proceeding.



806 INDIANA LA W REVIEW [Vol. 17:687

Figure ^3>

PROHIBITED SET-OFF WITH ONE UNINSURED PARTY

Party and

^0 of Fault

P (3507o) A (25%) B (40%)

Unadjusted

Damages
$10,000 $10,000 $10,000

Verdicts $2,500 against A
$4,000 against B

$3,500 against P
$4,000 against B

$7,500 against A
$3,500 against P

Insurance

Coverage (1)

Receipts

Payouts

Net

Recovery

$10,000 -0- $10,000

from A
$4,000 from B

$3,500 from P
$4,000 from B

from A
$3,500 from P

$7,000

(46.6%)

-0- $8,000

(53.3%)

($3,000) $7,500 ($4,500)

Insurance

Coverage (2)

Receipts

Payouts

Net

Recovery

-0- $10,000 $10,000

$2,500 from A
$4,000 from B

from P
$4,000 from B

$2,500 from A
from P

-0- $5,000

(38.5%)

$8,000

(61.5%)

$6,500 ($1,000) ($5,500)

Insurance

Coverage (3)

Receipts

Payouts

Net

Recovery

$10,000 $10,000 -0-

$2,500 from A
from B

$3,500 from P
from B

$2,500 from A
$3,500 from P

$7,000

(58.3%)

$5,000

(41.6%)

-0-

($4,500) ($1,500) $6,000



1984] FIRST GLANCE HOI

Still another problem is the matter of under-dibWiiy to pay. To keep
this as simple as possible, the discussion will return to a two-party

hypothetical. In this set of facts, assume that the plaintiff is injured to

the extent of $100,000 and the defendant incurs $60,000 worth of harm.

They are found equally at fault. The plaintiff's obligation to defendant

would then be $30,000, and the defendant's obligation to plaintiff would

be $50,000. Here, however, the plaintiff carries $35,000 worth of in-

surance and the defendant is insured to a maximum of only $25,000
and cannot pay any excess liability.

If a prohibition of set-off applies to these facts, only one party's

claim is fully compensated, while the other receives only 50% of his
claim. "^^2 More than 90% of the monetary resources available for com-
pensation are utilized, but in a disproportionate manner, if the factors

of equal fault and unequal preparedness for liability are taken into

account. The chart below illustrates the results.

i

'"That is, plaintiff's carrier pays defendant $30,000, thereby fully discharging plaintiff's

liability to defendant. Defendant's carrier pays the $25,000 policy limits to plaintiff,

discharging 50% of the obligation. Since $60,000 worth of liability coverage was available,
91.66% of the protection funds available will have been expended.



808 INDIANA LA W REVIEW [Vol. 17:687

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1 984] FIRS J GLANCE j^09

As in the uninsured party situation, the prohibited set-off rule permits
the underinsured party to receive full recovery from the adequately

covered party's insurance resources, while the adequately covered party

is limited to the amount of insurance protection purchased by the other

party. Such may be the vicissitudes of modern life, but clearly there is
no incentive for those who create risks of injury in society, and for
those whose resources are inadequate to pay liability in excess of insurance

coverage, to maximize their insurance protection.

From the hypothetical insurance carriers' standpoint, a required set-
off rule works a little better. The system actually brings the parties'
ultimate liability within the range of insurance coverage by performing

the set-off operation prior to determining the respective obligations. In

this sense, the set-off rule will technically solve the under-insurance

problem. From the standpoint of parties equally at fault, and with the
objective of utilizing available insurance resources, however, the set-off

rule is much worse than a prohibition upon set-off. As the chart below
illustrates, only one-third of the resources which could be committed to

compensation are expended, and only one party receives them. This

system requires the hypothetical defendant to pay $20,000, and allows

her to recover nothing.



SIO INDIANA LA W REVIEW [Vol. 17:687

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1984] FIRST GLANCE 811

4. Alternatives to the One- Way Rules.—a. A lesser-injured pays
greater-injured system.—Several methods of addressing the illustrated
problems are feasible. The relative merits of each vary according to the

public policy and objectives emphasized in the system. For example, if

compensating the most seriously injured party is the prime concern in

the system, the law might require the lesser-injured party to pay the

greater-injured, using whatever resources were available until those re-

sources were exhausted or the claim was discharged. To implement such
an approach, the system would require the payment of the proceeds of

both parties' insurance into court and allocate those proceeds according

to an equitable principle of lesser-injured pays greater-injured.

Using the same hypothetical facts as in the last set of illustrations,

the system would work in the following manner. Plaintiff's carrier would

pay $30,000 into the court to cover the liability of plaintiff to defendant,

and defendant's insurance carrier would do the same with defendant's

$25,000 policy to cover the judgment debt. A total of $55,000 in com-
pensation resources is thereby made available to the court for the purpose
of equitable allocation. Under the guiding principle of this system, the

plaintiff obtains full compensation and the defendant receives $5,000

toward her injury. It utilizes the same proportion of resources as the

no-set-off rule, and allocates those resources "better" than the set-off

rule in the sense that the person with the greater injury is compensated

first.



812 INDIANA LA W REVIEW [Vol. 17:687

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1 984] FIRST GLANCE 8 1

3

However, the allocation is more disproportionate than the no set-

off rule, and while it happens in this case to put the heaviest burden

on the lesser-injured and lesser-prepared party, the burden does not

necessarily follow from the latter factor/" If some incentive toward

adequate financial responsibility is a strong policy in the jurisdiction,

and is desired in the compensation system, this method would not be

attractive.

b. A lesser-prepared pays greater-prepared system.—A policy which
emphasizes financial responsibility might give primacy to an equitable

principle which requires the lesser-prepared tortfeasor to bear the greater

burden of allocation. Such a system would require, as in the previous

alternative, the parties to pay the proceeds of insurance into court prior

to allocation of recovery amounts. Under the facts of this discussion's

hypothetical, an allocation in accordance with a principle of lesser-

prepared pays greater-prepared produces the same results as the system

previously illustrated.'^^'* If the injuries happened to be reversed, and the

magnitude of preparedness is considered to be a matter of proportion

of actual liability covered by insurance, the matter of who is the lesser-
prepared becomes a closer question, and illustrates the weakness of the

principle. "Lesser-" and "greater-prepared" are determined by reference

to the magnitude of the injury. Since that factor is a mere fortuity,

there may be some incentive to insure to the maximum, but there is
also a temptation to hedge, on the hope that the other party will be

the "lesser-insured." Furthermore, a major misallocation results at any

rate. This alternative system requires some rather significant tradeoffs
in order to give primacy to its driving principle. A system which would
be able to address more than one concern at a time would be more

attractive than either alternative considered thus far.

c. The Uniform Comparative Fault Act's system.—The Commis-
sioners on Uniform State Laws have attempted to develop a system
which purports to take into account the elements of obligation and

ability to meet the obligation. The Uniform Act imposes a prohibition

upon set-off, and provides for a court distribution upon motion of one
of the parties. '^^^ The commentary to that section sets out several illus-
trations involving various combinations of proportions of fault, amounts

of injury, and availability of insurance to guide adopting jurisdictions

""That is, if defendant remained the most thinly covered, but happened to have

incurred the larger amount of injuries, the burden would be borne by plaintiff, the party
most prepared (defendant received $30,000 and plaintiff gets $25,000 as before).

"^"Illustrated graphically:

Plaintiff (most prepared) pays $30,000 policy proceeds into court. Defendant

(least prepared) pays $25,000 policy proceeds into court. Plaintiff's claim of

$50,000 is satisfied first.

Defendant receives remaining $5,000.
""Unif. Comparative Fault Act § 3, 12 U.L.A. 35, 41 (Supp. 1984). [hereinafter

cited Uniform Act]. That section provides:



S14 INDIANA LAW REVIEW [Vol. 17:687

in the allocations of compensation resources. The illustrations are framed

in terms of the "pure" system of comparative fault, however, and under

a "modified" system would not give rise to the set-off issue because

in each illustration one party's "fault" is greater than 50%.

However, one illustration in the commissioners' commentary sets

out a formula applicable where both parties are under-insured which

might be applied in a "greater than 50% rule" jurisdiction. That formula
is "'D^^C-O + P,''"^-^ where D equals the amount to be distributed to
a party; C equals the amount of a party's claim after reduction by the
fault percentage; O equals the amount owed to the other party; and P
equals the amount paid into court. Applying the formula to our hy-
pothetical, in the plaintiff's case, C would equal $50,000, and O would
equal $30,000. Performing the operation of the formula would produce

$20,000 as a function of C minus O. Adding the $30,000 liability insurance
coverage paid into court to that figure produces a value for D of
$50,000. Defendant's distribution amount would be ($30,000 - $50,000
-I- $25,000) = $5,000. That, of course, is the same distribution produced
in the example based upon the lesser-injured pays the greater-injured
principle. If the injuries were reversed, however, the distributions would

be

Plaintiff: ($30,000 - $50,000 + $35,000) = $15,000
Defendant: ($50,000 - $30,000 + $25,000) = $45,000

After these figures are inserted into the chart being used for illus-

trative purposes, the system produces these results:

A claim and counterclaim shall not be set off against each other, except
by agreement of both parties. On motion, however, the court, if it finds that
the obligation of either party is likely to be uncollectible, may order that both

parties make payment into court for distribution. The court shall distribute the

funds received and declare obligations discharged as if the payment into court

by either party had been a payment to the other party and any distribution of

those funds back to the party making payment had been a payment to him by

the other party.

^^''Id. commissioners' comment, illustration No. 8, at 42.



1984] FIRST GLANCE 815

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816 INDIANA LAW REVIEW [Vol. 17:687

In this setting, the formula appears to work somewhat better than

a straight set-off rule, but somewhat worse than a straight prohibition

of set-off, in terms of relative proportions of compensation recovered/"

The formula seems to be skewed in favor of the lesser-injured pays

greater-injured principle and provides little incentive for financial re-

sponsibility.

This effect can be best illustrated in the context of one party being

//^insured. For example, assume that the defendant in the hypothetical

carried no insurance. Applying the formula produces this result:

Plaintiff: ($50,000 - $30,000 -f $30,000) = $50,000
Defendant: ($30,000 - $50,000 + 0) = ($20,000)

The negative figure produced for the defendant denotes a continuing

obligation in the plaintiff's favor in that amount, and will correspond

with the figure reached by subtracting the amount of insurance proceeds

paid into court by the plaintiff from the amount of the plaintiff's

allocation.'*''^ The results are charted below:

""This criticism in comparison to the straight no set-off rule would not apply in the

case where the defendant (with the $50,000 claim) was uninsured and unable to pay.

The straight no set-off rule would allow the defendant to recover her full $30,000 claim,

while the plaintiff would be required to execute upon the insurance proceeds to get anything

at all. Applying the formula, the court would award the plaintiff $15,000 and the defendant

$20,000. The formula works a little better in this circumstance, but it is nevertheless

closely tied to the least-injured pays most-injured principle, and some distortion thereby

results.

"'"The commissioners' commentary states that the figure "corresponds with a number

larger by that figure than the amount of deposit with the court . ..." As can be seen

by the example presented in this discussion, the statement by the commissioners is

incomplete. Uniform Act, supra note 455, at 42.



1984J FIRST GLANCE 817

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818 INDIANA LAW REVIEW [Vol. 17:687

If the plaintiff is the uninsured party, the formula produces this result:

Plaintiff: ($50,000 - $30,000 + 0) = $20,000
Defendant: ($30,000 - $50,000 + $25,000) = $5,000

Charted, the results are:



1984] FIRST GLANCE 819

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S:0 INDIANA LAW REVIEW [Vol. 17:687

If the injuries were reversed the formula produces the following

results:

(1) Defendant with no insurance:

Plaintiff: ($30,000 - $50,000 + $35,000) = $15,000
Defendant: ($50,000 - $30,000 + 0) = $20,000

(2) Plaintiff with no insurance:

Plaintiff: ($30,000 - $50,000 + 0) = $20,000
Defendant: ($50,000 - $30,000 + $25,000) = $45,000

Placed in the charts, the allocation looks Hke this:



1984] FIRST GLANCE 821

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1984] FIRST GLANCE 823

Clearly, some incentive is present to obtain some insurance protection,

since the allocation takes not only uninsured but also under-insured

parties into account. However, with one exception, the incentive is wholly

subordinated to the lesser-injured pays greater-injured principle so long

as one of the parties has some insurance protection. Interestingly, the

only time the incentive is not subordinated to the latter principle is when

the lesser-injured also has sufficient coverage to produce a surplus over

the amount of the allocation for the greater-injured.

d. An "equal-division" system: variation one.—Another approach
might not give primacy to either of the principles behind the systems

discussed above. Instead, this alternative would take into account the

parties' collective ability to compensate for injuries they cause, and

would permit an equitable division of those resources. This system of

allocation would have reference to the equal fault of the parties. One
variation would be simply to require the parties to share equally in the

compensation resources to the extent of their claims or the sum of those
resources. Thus, where plaintiff had $30,000 worth of insurance coverage

available and defendant had $25,000, each would receive $27,500 in the

distribution. This "equal-division" method could produce some dispro-

portion in allocation relative to the parties' respective injuries, but it

also produces a stronger incentive than the above systems for financial

responsibility. Each party would know in advance of an accident that
if they elect to go partially uncovered, recovery will assuredly be less

than it would be under full coverage. If the incentive were strong enough

to induce full coverage for both parties, the misallocation relative to

the size of injury would disappear. However, since the lesser-prepared

pays greater-prepared principle is not part of the system, an uninsured

party benefits from the adequately prepared party's financial responsi-

bility. That effect may be tempered somewhat by judicial refusal to
discharge the more responsible party's claim against the unprepared party,
but in the case of an insolvent party, little protection would actually

result. Nevertheless, the system is uncomplicated and simple to administer,

and its simplicity may outweigh its disadvantages."*^^
The results of this system are shown below in chart form in Figures

#12 and 13 for comparison with the other systems discussed.

"^'The system also works for cases involving multiple parties and unequal fault. See

the chart on page 824, infra.



824 INDIANA LA W REVIEW [Vo . 17:687

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1984] FIRST GLANCE 825

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826 INDIANA LA W REVIEW [Vol. 17:687

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1984] FIRST GLANCE ^11

Comparison with the other systems shows that, with respect to total

percentage of verdict recovered, the system performs as well as any of

the previously discussed alternatives and as well as any system might

hope, given compensation resources amounting to only 75% of the total
obligation. This alternative actually performs slightly better than the

Uniform Act's formula when individual percentages of verdicts recovered
are compared. However, since the equitable allocation method does not

include an adjustment factor for lack of financial responsibility, the

presence of an uninsured party produces significant differences in result

which may not be desirable. Compare the charted results below with
the allocations in previously discussed alternatives:



s:s INDIANA LA W REVIEW [Vol. 17:687

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1984] FIRST GLANCE 829

This method of allocation also works easily in a multiple party

situation. Adjusting the facts of the hypothetical to add a third party

produces the following results:



S30 INDIANA LA W REVIEW [Vol. 17:687

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1984] FIRST GLANCE 831

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S3: INDIANA LAW REVIEW [Vol. 17:687

However, the allocation above illustrates the serious malapportion-

ment that can result in this system which can come at the expense of
the most seriously injured and the most financially responsible party.

In addition, since the touchstone of the system is equal division, which

in turn rests upon the presumption of equal fault of the parties, when

fault is not equally apportioned, the allocation loses its foundation and

parties who are much less at fault would underwrite others with greater
fault.

e. An ^'equal-division'* system: variation two.—The other variation
of this system would permit a different form of equal participation in

the compensation resources. In this system, apportionment would refer

to what the parties collectively ''bring" to the lawsuit by way of ability

to pay for compensation and account for their equal fault by permitting

each to "take away" an equalized proportion of those resources. It also
addresses the relative magnitude of injury by permitting the dollar amount
of compensation to vary according to that magnitude. Under this system,

the claims of both parties after adjustment for "fault" would first be

totalled. In the hypothetical case, this figure would amount to $80,000.
Next, the amount of resources applicable toward compensation would
be totalled; here that figure would be the plaintiff's $30,000 obligation

and the defendant's $25,000 worth of insurance coverage, or $55,000.

The proportion of the total claims which the total compensation resources

represents would determine the proportion of each party's claim which

they could recover from the lawsuit. Here, $55,000 is 68.75% of $80,000.
The plaintiff would then be entitled to collect 68.75% of $50,000, or

$34,375. The defendant would receive 68.75% of $30,000, or $20,625.
Illustrated in chart form:



1984] FIRST GLANCE 833

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834 INDIANA LAW REVIEW [Vol. 17:687

The description of the system in these terms is actually a simplification

of how the distribution would be accomplished. Since the plaintiff's
compensation actually exceeds the amount of the defendant's liability
insurance proceeds, the full description of the process of equitable

distribution to accomplish that fact is fairly complicated.

The following is a more precise explanation of the distribution

process. After determining the proportion of claims to be compensated,

the court first makes an allocation designed to discharge the legal ob-

ligation each owes to the other. From the proceeds of insurance paid
into court, it allocates $30,000 to the defendant toward defendant's

claim, thereby discharging the plaintiff's obligation. Then, the court

allocates the remainder of the compensation resources to the plaintiff,

which in this case would be $25,000. Since the plaintiff's claim is not

yet satisfied, the court then turns back to the defendant's resources to

begin a second allocation. Since the defendant still owes a plaintiff

$25,000 and has the resources to meet that obligation by virtue of the

first allocation, the court reallocates $25,000 of that $30,000 back to

plaintiff, thereby legally satisfying plaintiff's claim. However, since the

process has, at this stage, resulted in an actual misallocation of com-

pensation, and is at odds with the equal proportions principle, the court

must enter a third stage of equitable allocation to adjust the awards.

Since the equitable proportion is 68.75%, the court then reallocates from

the $50,000 the plaintiff has received up to now the amount necessary
to make up the difference between the defendant's allocation ($5,000)
and 68.75% of the defendant's claim ($20,625), or $15,625. That leaves

the parties with their equitable proportion of the compensation resources

and each claim against the other has been discharged.

The dollar amount distributed to each party by this system is more

consistently proportionate than any of the systems discussed previously.

For example, where the injuries are reversed:



1984] FIRST GLANCE 835

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836 INDIANA LAH REVIEW [Vol. 17:687

The weakness of this system, of course, is that its "equal propor-

tions" principle treats each of the parties the same, even though they

have disproportionately contributed to the compensation resources. An
incentive to be fully financially responsible exists, since to the extent

that one's ability to pay is added to the compensation resource pool,

the proportion of recoverable claims is increased. Yet in actual operation,

the well-prepared person's resources are burdened by the ill-prepared

person's recovery without direct relation to the amount supplied by the

financially responsible person. If a stronger incentive to be financially

responsible is desired in the system, some method of allocation would

have to be developed^^^" which would reward the well-prepared party and

penalize the ill-prepared. Furthermore, as is the case with the other

alternatives, the system does not work in a situation where the fault of

the parties is assessed in unequal percentages. Unless the fault of the

parties is to be ignored—something hardly consistent with a comparative
fault system—a system based on equal proportion produces misallocation.

/. An injury-fault-responsibility apportioned system.—A method of
taking into account the relative magnitudes of injury, fault, and financial

responsibility is possible. The system can work in multiple party cases

as well as two-party ones. It is complicated, but no more than some

of the other alternatives.

Starting from the assumption that the only meaningful "claim" an

injured party has is one that can attach to recoverable resources, this

system first determines the total pool of resources subject to compensation

payments. That step will require reference to the amount of the verdicts

and the amount of financial resources available for payment of those

verdicts. In the two-party hypothetical discussed above, the verdicts

produce insurance proceeds subject to payment totalling $55,000."^^'

In the second step, the proportion of injuries are calculated. Here,

the plaintiff's injuries constitute 62.5% and the defendant's equal 37.5%

of the total amount of injuries in the case.

The third step in the process would require the court to determine

a "base recovery" figure for each of the parties. That "base recovery"

represents the same proportion of the resource pool that the parties'

injuries bear to the total injuries. The plaintiff's "base recovery" would

be computed by applying the 62.5% injury percentage to the $55,000
resource pool figure, producing a figure of $34,375. The defendant's

"base recovery" would be $20,625 ($55,000 x 37.5%.)

"^'Recovery might be permitted in direct proportion to the amount of financial resources

applicable to compensation which have been brought into the action. In the hypothetical

presented in the text that would mean that the plaintiff would recover $30,000 and the

defendant $25,000. Such an allocation would, of course, effectively transform liability

insurance into loss insurance, a step the courts may not wish to take without legislative
assistance.

'^'The amount would be $60,000 if the injuries were reversed.



1984] FIRST GLANCE 837

The relative contributions of fault of the parties would next be taken

into account. Each party's "base recovery" would be reduced in pro-

portion to that party's percentage of fault. Since the two-party hypo-

thetical has assumed equal fault, the "base recoveries" of each would

be reduced by 509/0."^^^ The adjusted base recovery figures would then

be $17,187.50 and $10,312.50 for the respective parties. The amounts

from the reduction would then be "returned" to the resources pool for

the final level of allocation. Here, $27,500 remains in the pool.

In the final step, the proportionate contributions to the resource

pool are computed, and the funds remaining in the pool are distributed

in those proportions. Since the plaintiff contributed 54.5^o of the in-

surance proceeds, he would receive $14,987.50 in the final stage of

allocation, while the defendant would receive $12,512.50. Total allocations

would then be $32,175 for the plaintiff and $22,825 for the defendant:

""See the discussion on following pages for an illustration involving unequal fault.

Here, if the plaintiff's fault was assessed at 60%, for example, no occasion would arise

for equitable allocation since the contributory negligence bar would be operable.



/

838 INDIANA LA W REVIEW [Vol. 17:687

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1984] FIRST GLANCE 839

Clearly, neither the lesser-injured pays greater-injured principle nor

the lesser-prepared pays greater-prepared principle dominates the allo-

cation. Each is factored into the final recovery along with a consideration

of fault (although here each party's fault balances the other), and

produces allocations that reflect the particular combination of elements

for each party. A comparison with the other alternatives in the context
of the uninsured party demonstrates this effect very well:



/

S40 INDIANA LA W REVIEW [Vol. 17:687

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1 984] I' IRST GLA NCE 84

1

In each case, recovery is substantially less for the uninsured party,

both in dollar amount and in relative percentages of verdict. However,

some recognition for magnitude of injury is given and, even if the

greater-injured party is uninsured, some recovery is permitted. In the

case where both parties' financial resources are inadequate, the obligation

is not treated as discharged in order to permit later recovery should

circumstances change. It may amount to an empty remedy, but at least
the possibility of full recovery remains open. If the obligation is dis-

charged, the final adjustment of the parties' relative claims could produce

a meager remedy. If further inducement toward financial responsibility

is desired as a matter of policy, the obligations could be treated as

discharged using the method of allocation described above.

The strongest feature of this system is its abihty to produce allocations

in multiparty unequal fault cases. Because one level of allocation is

keyed to the proportions of fault, it is able to address the case where

the parties' percentages of fault are different without distorting or aban-

doning a principle driving the system. The same method is used as in

the two-party case. A demonstration of the method is shown in the
chart below.



/

842 INDIANA LA W REVIEW [Vol. 17:687

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1984J FIRST GLANCE 843

g. The system rejected by the Indiana General Assembly. —The
Indiana legislation as originally proposed included a mandatory set-off

provision/" Set-off was mandatory, that is, except with respect to "that

portion of a claim . . . covered by liability insurance. '"^'^'^ So, where

the plaintiff had a claim of $50,000 and insurance coverage of $35,000,

and the defendant had a claim of $30,000 and insurance of $25,000,

each claim would be first paid to the extent of coverage. Here, the

plaintiff's claim would then be reduced to $25,000, and the defendant's

would be paid in full. The defendant would then still owe the plaintiff

$25,000.

^"Senate Bill No. 331, 102d Gen. Ass., 1st Reg. Sess., Sec. 1, § 6 (1983) (this section

was subsequently deleted in the final version of the Act).



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1984] FIRST GLANCE 845

If the injuries were reversed, and each party's insurance coverage

were first applied to the other's claim, the plaintiff would still have

$5,000 of his claim unsatisfied and the defendant would have $15,000

of her claim remaining. Set-off would then be applied, with the result

that the plaintiff would still owe the defendant $10,000.



S46 INDIANA LA W REVIEW [Vol. 17:687

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1984] FIRST GLANCE 847

The principle of lesser-prepared pays greater-prepared is thus sub-

ordinated to the principle of lesser-injured pays greater-injured. The

system provides some incentive for financial responsibility, since the only

way one can be assured of receiving any benefit of set-off is to make
sure liability is covered.

Where one party is insured but the other is not, the uninsured party
benefits by receiving the proceeds of the more-prepared party's insurance

coverage, and may benefit even further if set-off is applied to the claims
remaining outstanding after deduction of insurance proceeds. Thus, where

the plaintiff is uninsured and incurs an $80,000 claim against the de-

fendant, for example, and the defendant has a $40,000 claim against

the plaintiff with $30,000 worth of liability insurance, the plaintiff is

entitled to the entire $30,000 proceeds and then may offset the remainder
of his claim against the defendant's. The defendant receives nothing,
and still owes the plaintiff $10,000:



S48 INDIANA LA W REVIEW [Vol. 17:687

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1984] FIRST GLANCE 849

Furthermore, this system suffers from the same tendency to distort

apportionment as the systems discussed above where one principle is

permitted to control the allocation. The distortion is perhaps not as

great, but clearly apportionment based upon fault is rendered all but

inoperative beyond the determination of the verdicts. Unlike many of
the other alternatives, however, it can work in a multiple party, unequal-

fault setting:



S50 INDIANA LAW REVIEW [Vol. 17:687

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1984] FIRST GLANCE 851

However, the same weakness in regard to misallocations resulting

in uninsured and underinsured cases is graphically illustrated in the above

hypothetical. The grossly underinsured party {D^) is permitted to recover

fully as a result of the other parties' adequate coverage. The others

receive only the meager proceeds of £>^'s insurance policy and a continuing

obligation from D^. The latter may be an empty remedy if D^ has no
other way of satisfying the judgment.

A benefit of the system, however, is that it is quite easy to apply
in comparison to some of the others discussed here. That ease of

administration may make the system attractive despite its shortcomings.
As demonstrated, several approaches to set-off are possible, each

with its advantages and disadvantages. In refusing to address the issue,

the General Assembly may have intended to give the courts the flexibility
to develop an acceptable approach along the lines of any of these models

or other alternatives. Whether it had such intentions or not, the courts

certainly have the power to adjust the parties' claims using methods

which have the flexibility to address the several issues raised in this

discussion. With that power resides the responsibility to consider the

issues carefully and to avoid adoption of a rigid, one-way rule which

cannot address all of the interests of the parties and the public at the

same time.

B. Last Clear Chance

The doctrine of last clear chance is a common law rule that permits
a negligent plaintiff to recover from a neghgent defendant. "^^^ A plaintiff
uses the doctrine to counteract the defendant's assertion that if the

plaintiff had exercised due care, the injury would not have occurred.

In effect, the doctrine permits the plaintiff to admit to contributory

negligence without having recovery barred because the defendant's duty

of care includes protecting the plaintiff in his position of peril. The

similarity in function between the doctrine and comparative fault raises

a question of its continued availability in the new system, a question
the Indiana Act fails to address.

Consider these hypothetical facts as a background for the following

discussion: The plaintiff, without looking or listening for trains, drove

his new car upon defendant's railroad tracks at the top of an incline.
Because the plaintiff was unfamiliar with the operation of the clutch

and manual transmission, his car sputtered and stopped on the tracks.

The plaintiff was not aware that the defendant's diesel engine was on

the tracks. The engineer was travelling faster than required because he

wanted to go home. No railroad cars were attached to the engine. At

*^'See generally 2 F. Harper & F. James, The Law of Torts, §§ 22. 12-. 14, at 1241-
63 (1956); W. Prosser, Handbook of the Law of Torts § 66, at 427-33 (4th ed. 1971).



852 INDIANA LAW REVIEW [Vol. 17:687

the time the engineer saw the plaintiff drive onto the tracks and stop

and for some moments thereafter, he could have stopped the engine
without hitting the plaintiff's car. Thinking the plaintiff was trying to

frighten a passenger, the engineer slowed the engine but did not sound

the required warning signal. When he realized that the plaintiff was not
going to drive the car off the tracks, the engineer belatedly attempted

to brake the train and a spectacular colUsion occurred. The plaintiff

was severely injured. "^^^ If the plaintiff sues the defendant under present

Indiana law, the defendant will raise contributory negligence, and the

plaintiff will respond with the theory of last clear chance.

To successfully invoke last clear chance, the plaintiff must prove
that the defendant's employee did in fact have the last clear chance to

avoid the injury. To do that the plaintiff must show that:

(1) The defendant had actual knowledge of the plaintiff;

(2) The defendant knew of the plaintiff's perilous position;

(3) The defendant had physical control over the instrumentality

and had the last opportunity through the exercise of rea-

sonable care to avoid the injury; and

(4) The plaintiff was oblivious to his own danger, notwith-
standing his own contributory negligence. "^^^

A plaintiff estabhshing those facts will defeat the defendant's contributory
negligence defense, and will be entitled to recover fully for his injuries. ''^^

Given this significant exception to the contributory negligence bar,

it is important to know whether the doctrine will operate as an exception
to the apportionment principle in comparative fault. Some comparative
fault statutes have specifically addressed the matter. "^^^ The Uniform

Comparative Fault Act, for example, states that "[t]his rule applies

whether or not under prior law the claimant's contributory fault con-

stituted a defense or was disregarded under applicable legal doctrines,

such as last clear chance. '"^^^ The Uniform Act proposes "pure" com-

parative fault, and attempts to completely displace contributory negligence

and its kindred doctrines. The Indiana Act, by virtue of its "greater

than 50%" modification, may not have abandoned all vestiges of con-

''^The hypothetical is a modification of the facts in the Indiana case of Terre Haute,

Indianapolis & Eastern Traction Co. v. Stevenson, 189 Ind. 100, 123 N.E. 785 (1919).
^'^McKeown v. Calusa, 172 Ind. App. 1, 6, 359 N.E.2d 550, 554 (1977) (quoting

National City Lines, Inc. v. Hurst, 145 Ind. App. 278, 282, 250 N.E.2d 507, 510 (1969)).

'"^Terre Haute, Indianapolis & Eastern Traction Co. v. Stevenson, 189 Ind. 100, 123
N.E. 785 (1919); McKeown v. Calusa, 172 Ind. App. 1, 359 N.E.2d 550 (1977). See
generally 2 F. Harper & F. James, supra note 465, §§ 22. 12-. 14, at 1241-63; W. Prosser,
supra note 465, § 66, at 427-33.

""''See Conn. Gen. Stat. Ann. § 52-572h(c) (West Supp. 1984); Or. Rev. Stat. §
18.475 (1977).

"^^Uniform Act, supra note 455, § 1(a), at 36.



1984] FIRST GLANCE «53

tributory negligence. The Indiana Act does not include the sentence

quoted from the Uniform Comparative Fault Act. Its exclusion raises

the issue of whether a plaintiff may still employ the doctrine of last
clear chance to completely defeat the defendant's contributory fault

defense.

Much of the uncertainty surrounding the future of last clear chance
can be traced to the doctrine's past. The doctrine wandered upon the

torts scene in 1842 in the famous ''jackass" case of Davies v. Mann,^^^

and has never been adequately defined. "^^^ The court in Davies spoke in

general terms only of defendant's failure to exercise "proper care" to

avoid the injury and of his duty to travel at a "pace as would be likely

to prevent mischief" without considering whether plaintiff's donkey was

lawfully on the highway. ^^^ Subsequent courts have offered greater pre-

cision of language, without adding precision of thought. "^^"^ The precision

that has been lacking concerns the foundation of the doctrine. Some
courts and commentators consider last clear chance an offshoot of

^^'152 Eng. Rep. 588 (1842). Plaintiff allowed his donkey to wander in the public

highway, though he did "fetter" its front legs. Defendant, driving his wagon down a hill
at a fast clip, struck and killed the donkey. The court held defendant liable. Professor

Maclntyre points out that cases containing the formula, though not the language, of last

clear chance predated the Davies case. Maclntyre, The Rationale of Last Clear Chance,

53 Harv. L. Rev. 1225, 1228-30 (1940).

*''^See James, Last Clear Chance—A Transitional Doctrine, 47 Yale L.J. 704 (1938);
Maclntyre, supra note 471, at 1230; 2 F. Harper & F. James, supra note 465, § llAA,
at 1255-60; W. Prosser, supra 465, § 66, at 427-29.

'^nSl Eng. Rep. at 589.

^^Professor James cites two good examples in his article, supra note 472, at 709

n.31. In Rasmussen v. Fresno Traction Co., 15 Cal. App. 2d 356, 59 P.2d 617 (1936),

the court stated:

As has frequently been said, the doctrine of the last clear chance means exactly

what the words imply and the essence of the rule is that it is applicable only

where the defendant, notwithstanding the plaintiff's negligence, has a clear chance,

after realizing that the plaintiff cannot escape, to avoid the accident by the

exercise of ordinary care, and where the plaintiff cannot avoid it by the use

of such care.

15 Cal. App. 2d at 362, 59 P.2d at 619. The court was content that sufficient explication

of the doctrine had been given and then proceeded to reverse a judgment for the plaintiff.

The holding was based on evidence which showed (1) the defendant's agent did not see

the plaintiff because he was distracted in giving change to his passengers and (2) the

plaintiff did not check the tracks again after having seen the defendant's streetcar some

200 feet away. The court said that such evidence would not support the inference that

the defendant's agent "had a clear opportunity to avoid the accident" nor that the plaintiff

"was unable to escape from his position of peril." Id. at 369, 59 P.2d at 623.

In Keller v. Norfolk & W. Ry. Co., 109 W. Va. 522, 156 S.E. 50 (1930), the court
Keller v. Norfolk & W. Ry. Co., 109 W. Va. 522, 156 S.E. 50 (1930), the court said:

The doctrine of last clear chance is a simple and meritorious one, and bears
its definition in its title. Its simple test is whether the defendant had the
opportunity to prevent the accident after the plaintiff ceased to have it ... .
Its application needs no perversion of logic or distortion of facts.

Id. at 528, 156 S.E. at 52. The court denied recovery to the plaintiff based on evidence



854 INDIANA LAW REVIEW [Vol. 17:687

proximate cause. "^^^ Others consider it an early form of comparative or

apportioned fault. "^^^ The future of the doctrine and the approach courts
may use in interpreting it in hght of comparative fault are directly linked
to their view of the doctrine's theoretical source.

I. Proximate Cause.—Often the doctrine has been linked to prox-
imate cause, and that view is favored by Indiana courts. "^^^ Adherents

of the proximate cause theory look for the "last wrongdoer." Pursuant

to this view, if a defendant could avoid injurious contact with a plaintiff

whose own fauky acts exposing him to harm had "come to rest," the
defendant may not use the plaintiff's negligence as a defense. The
defendant's failure to avoid the negligent plaintiff is taken to be the

legally responsible cause of the injury, '*^^ although sometimes such an

analysis will not bear scrutiny. The weakness of linking last clear chance

to proximate cause is demonstrated by changing the facts of the auto-

mobile-train hypothetical. In the revised hypothetical, the driver did not

own the car but had borrowed it from a friend. If the owner sued the
driver to recover for damage to the car, the driver could not escape

liability by claiming that his acts were not the proximate cause of the

accident. "^^^ It would be inconsistent for the driver to be considered a

proximate cause of the injury in a suit with the car owner and not to

be a proximate cause in a suit with the railroad.

For this reason, the proximate cause foundation of last clear chance

has been termed a rationalization. '*^° Even if the proximate cause link

is a rationalization, a state's highest court could scarcely admit to having

rationalized all along and then order that all earlier decisions be treated

only as casuistic artifacts of an effort to protect plaintiffs. Such an

admission would be especially difficult in a jurisdiction where the leg-

islature, not the court, had adopted comparative fault. In such a ju-

risdiction, the legislature will have deprived the courts of an opportunity

that the defendant's fireman saw the plaintiff's car approaching the railroad crossing and

blew the whistle when he saw that the automobile was not going to stop. The engineer

did not see the automobile "until it was right at the crossing." Id. at 524, 156 S.E.

at 51. The court seemed to base its holding upon its belief that the defendant's agent

was "ignorant of the plaintiff's danger." Id. at 528, 156 S.E. at 52. The court refused

to impute knowledge in the absence of actual knowledge, and found defendant not liable.

'''See infra text and citations accompanying notes 477-84. See also James, supra note

472, at 709-15; W. Prosser, supra note 465, § 66, at 427.
^'''See, James, supra note 4^2, at 715-23; Maclntyre, supra note 471, at 1226-35; W.

Prosser, supra note 465, § 66, at 428. See also infra text and citations accompanying

notes 485-92.

^"McKeown v. Calusa, 172 Ind. App. 1, 359 N.E.2d 550, 559 (1977) (citing Bates

V. Boughton, 151 Ind. App. 139, 278 N.E.2d 316 (1972)). See also Terre Haute, Indianapolis

& Eastern Traction Co. v. Stevenson, 189 Ind. 100, 123 N.E. 785 (1919).
*'^See James, supra note 472, at 709-15; W. Prosser, supra note 465, § 66, at 427.
''^See Lincoln City Lines v. Schmidt, 245 F.2d 600 (8th Cir. 1957); Atlantic Coast

Line R. Co. v. Coxwell, 93 Ga. App. 159, 91 S.E. 2d 135 (1955).

"^'James, supra note 472, at 710-11. See Maclntyre, supra note 471, at 1226.



1984] FIRST GLANCE 855

to address such doctrines as last clear chance on an incremental basis

through transitional cases/^'

The proximate cause theory, when used by a court, may be more
than rationalization. It may be something entirely different from a
concealed attempt to mitigate the harshness of the contributory negligence

doctrine. It might be a distillation of all of the court's thoughts about

poHcy, justice, fairness, experience, pragmatics, and cultural and religious

values to answer the question: Should this defendant be liable to this

plaintiff for this injury?

"Proximate causfe" may be a special hnguistic shorthand, an almost
talismanic representation for the larger and more complex thoughts that

courts sometimes avoid expressing. The phrase in the context of last

clear chance possibly stands for judicial thinking that:

(1) The defendant's duty to avoid harm to others exposed to
the risks he creates includes a duty to those who have been
exposed to the risk through their own fault; and

(2) The defendant's duty extends to such plaintiffs because
considerations such as policy, justice, fairness, experience,

pragmatics, and cultural and religious values'^^^ demand that
injury to even inattentive and inadvertent persons be avoided

by the exercise of ordinary care; and

(3) The defendant's duty may not be excused by the plaintiff's
conduct because the considerations in part (2) prompt the
belief that such a defense would in effect declare otherwise

** antisocial" conduct acceptable merely because it impinged

upon other negligent conduct; and

(4) The defendant's duty differs from and is larger than the
plaintiff's duty because it includes the risk that someone
else will be inattentive and inadvertent and because accidents

can be better prevented if the costs of failure are borne by

the actor who had the best chance to avoid the accident;
and

(5) The defendant's breach of duty makes him legally account-
able to a plaintiff who may in turn be legally accountable
to others.^83

"« 'Where comparative fault has been judicially adopted, courts are more willing to

abolish last clear chance than where the legislature has adopted it. On the other hand,
compartive fault has been adopted in many jurisdictions only recently, and it may be too
early to draw any firm conclusions from the relatively small samples. See Heft & Heft,
Comparative Negligence App. 2, at 188-89 (Supp. 1983).

''^^Of course, each of these terms are themselves shorthand, almost talismanic rep-

resentations of larger and more complex thoughts. A court may prefer to use the rep-
resentative terms rather than set out the thoughts behind them.

"^^Thus, a court dealing with the railroad crossing hypothetical might well announce

its decision only in terms that defendant's failure to take the last clear chance to avoid



S56 INDIANA LAW REVIEW [Vol. 17:687

When courts do not engage in this larger and more complex ex-
plication of "proximate cause," one cannot know whether they really
meant to say all of that. The previous paragraph could be a totally

different basis for a court's decision that a particular defendant ought

to compensate a particular plaintiff for a particular injury. A court
using proximate cause as a special shorthand in last clear chance cases

may have difficulty jettisoning the doctrine as mere rationalization. A
court which specifically disavowed any attempt to apportion fault in

applying last clear chance would have even more trouble rejecting the

doctrine.-*''^ To such a court, a comparative fault statute would not of
itself compel the abandonment of the doctrine of last clear chance because

the shorthand meaning of "proximate cause" shows that the doctrine's

roots go deep into the very core of societv.

2. Apportioned Fault.—A competing theory links the doctrine of
last clear chance to apportioned fault and suggests that last clear chance

is a way of balancing or weighing the conduct of the parties. In this
theory, the doctrine will bar the defendant's contributory negligence

defense if the defendant's "later'"*^^ failure to act is more faulty than
the plaintiff's contributory fault. ''^^ This theory is also susceptible to

charges of rationalization, because the doctrine operates in an "all-or-

nothing" fashion even in jurisdictions that disavow degrees of negh-

gence."^^^ In many cases, the results are inconsistent with the actual
culpability of the parties. "^^^ Furthermore, if the doctrine were a ration-

alization for camouflaged comparative fault, once comparative fault had

been adopted, last clear chance could be abandoned, and jurisdictions

retaining the "all-or-nothing" aspect of the doctrine after adopting

comparative fault would appear rather foolish. "^^^

harm was the proximate cause of injury. If the above construction of thought stood

behind the words "proximate cause," it might well represent a "countervailing morality"

which maintains that defendants should not have "an 'open season' upon plaintiffs who
are caught in a negligent position." L. Green, Judge and Jury 119, 234 (1930).

^"^E.g., Terre Haute, Indianapolis & Eastern Traction Co. v. Stevenson, 189 Ind.
100, 108, 123 N.E. 785, 787 (1919).

"^^It is not always actually later. In some instances, according to Professor James,

plaintiff actually has the later opportunity to escape the peril, but defendant is held

responsible because her "earlier opportunity is so much greater." James, supra note 472,
at 717.

""-See Maclntyre, supra note 471, at 1232-52; W. Prosser, supra note 465, § 66, at
428.

"^Indiana is one of those jurisdictions. Cf. Birdsong v. ITT Continental Baking Co.,
160 Ind. App. 411, 413, 312 N.E.2d 104, 106 (1974) (where the court rejected the seat
belt defense partially on the basis that Indiana does not recognize degrees of negligence)

(citing Pawlisch v. Atkins, 96 Ind. App. 132, 182 N.E. 636 (1932)).

^'"'See W. Prosser, supra note 465, § 66, at 428 and authorities cited therein.
'"''There is, of course, the possibility of judicial refusal or inability to recognize and

depart from an anomalous rule of law. However, Professor James does not suggest that



1984] FIRST GLANCE 857

Commentators have agreed that courts use last clear chance to escape

the harsh consequences of contributory negligence^'^'^ and to allow injuries

to "apportion" fault according to "popular notions and prejudices."'*'^'

Apportionment is a descriptive term, however, which may explain why

some courts employ the doctrine to reach a particular result but does

not explain how a court concluded that the defendant rather than the
plaintiff should bear the cost of the accident. A need might well exist
for a doctrine that tempers the harshness of contributory fault, but that

need alone cannot justify the doctrine, "^^^ especially where the harshness

is merely redirected toward the defendant. If avoidance of harsh results

is the goal, the doctrine should operate evenhandedly. A court which
allowed a plaintiff to benefit from the doctrine because the contributory

negligence bar is too harsh would be hardpressed to explain why the
doctrine itself was not harsh, especially if the plaintiff's actions were

more faulty than the defendant's.

If this need to ameliorate contributory negligence is valid, then the

last clear chance doctrine may no longer be needed after the appor-
tionment principles of comparative fault are adopted. If apportioned

fault is the basis of the doctrine, the adoption of a general, more refined

concept of fault comparison could easily displace it. Several jurisdictions

have abolished last clear chance on this basis. "^^^

The Indiana legislature has not adopted pure apportionment or

comparative fault because a plaintiff who is greater than 509/o at fault
is barred from recovery by contributory negligence. "^^"^ Because of this

vestige of traditional contributory negligence, Indiana courts may wish

a disguised comparative fault principle explains the genesis and development of last clear

chance in all judicial minds. See James, supra note 472, at 709-15. If other principles

apply, it would be fallacious to characterize the retention of the doctrine in comparative

fault jurisdictions necessarily as a needless and foolish practice. See V. Schw^artz, Com-
parative Negligence § 7.2, at 136-37 (1974); H. Woods, The Negligence Case: Com-
parative Fault § 8.2, at 172-73 (1978).

"^See W. Prosser, supra note 465, § 66, at 428, § 68, at 439 and authorities cited

at 439 n.7; at 439 n.7; V. Schwartz, supra note 489, § 7.1, at 131-32, § 7.2, at 139

and authorities cited therein.
^^•2 F. Harper & F. James, supra 465, § 22.14, at 1261.
^''^See Maclntyre, supra note 471, at 1236-51; see also, James, supra note 472, at

716-19.

"^^As of the time of this writing eight jurisdictions appear to have abandoned the

doctrine based upon the adoption of comparative fault. Four of those jurisdictions have

adopted the "pure" form of comparative fault. Kaatz v. State, 540 P.2d 1037 (Alaska

1975); Li. v. Yellow Cab Co., 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975);
Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973); Alvis v. Ribar, 85 III. 2d 1, 421 N.E.2d
886 (1981). Four "modified" comparative fault jurisdictions have also abolished the

doctrine. Cushman v. Perkins, 245 A.2d 846 (Me. 1968); Davies v. Butler, 95 Nev. 763.
602 P. 2d 605 (1979); Ratlief v. Yokum, 280 S.E.2d 584 (W. Va. 1981); Danculovich v.
Brown, 593 P. 2d 187 (Wyo. 1979).

^^'•IND. Code § 34-4-33-4(a), (b).



S5S INDIANA LAW REVIEW [Vol. 17:687

to retain the doctrine of last clear chance simply as a matter of balance/^^

That is, since plaintiffs are totally barred under some circumstances,
defendants ought to bear total liability under some circumstances.

No matter what the source of the doctrine, last clear chance is
difficult to apply and confuses juries/*^^ It has come under sharp and
well-considered criticism by courts'*'^^ and commentators"^^^ and is showing

signs of drowning in the tide of comparative fault/^^ Last clear chance

has figured into a significant amount of litigation in Indiana. ^^^ Continued

recognition of the doctrine, with its obscure theoretical bases and potential

to confuse, might undermine a comparative fault system by distorting

the apportionment of fault. The doctrine traditionally requires jurors to
bifurcate the defendant's conduct into two "levels" of fault. The first

"level," the negligence producing the risk of injury, could be excused

by plaintiff's own contributory fault. The second "level," the failure
to exercise ordinary care to prevent that risk from causing actual harm,

cannot be excused merely by reference to plaintiff's fault. Using ap-

portionment or comparative fault principles, a jury would not split the

defendant's conduct into levels of fault, but would simply be required

to decide how much the defendant's total course of conduct was at
"fault" in injuring the plaintiff. Both "parts" of defendant's conduct

would be considered as a whole and then compared to plaintiff's "fault"

for purposes of apportionment.

If the negative features of the last clear chance doctrine are considered

unjustifiable costs of its continued vitality, and the policy and functional

bases of the doctrine can be served by the comparative fault system,

the courts of Indiana would do well to abandon it. Whatever the outcome,

the failure of the Comparative Fault Act to address the issue puts the

onus upon the Indiana courts to consider the doctrine carefully when

the issue arises.
^°'

'"'See V. Schwartz, supra note 489, § 7.2, at 136-37, 139-40.
^^2 F. Harper & F. James, supra note 465, § 22.14, at 1261.
"'^E.^., authorities cited supra note 493.

'"""See authorities cited supra note 472.

"^See authorities cited supra note 493. In addition. Judge Woods suggests that several
other comparative fault jurisdictions have abandoned the doctrine without a judicial

pronouncement by removal from jury instructions and official commentary. H. Woods,

supra note 489, Appendix and Cumulative Supplement to Appendix (1982) (state by state

treatment).

''^Research at the time of this writing shows that the doctrine was at issue in 32

reported appellate level cases in Indiana in the last 18 years.

^"'Legislatures generally have found it unnecessary to address the issue (or, perhaps

more accurately, have found it necessary to not address it). Only Connecticut and Oregon

have abolished the doctrine by comparative fault legislation. Conn. Gen. Stat. Ann. §
52-572h (West Supp. 1983-84); Or. Rev. Stat. § 18.475(1) (1977).



1984] FIRST GLANCE 859

VI. Conclusion

Adoption of a "modified" system of comparative fault is an ex-

tremely important first step in reforming the torts compensation system

in Indiana, but travel along the comparative fault path has yet to begin.

Many adjustments in manner and means of travel will doubtless occur
as experience with features of the terrain traversed increases. To draw
firm conclusions about the Comparative Fault Act at this early stage

of the journey is, in this light, risky business. There are several forks

in the path and many conclusions about the operation and effect of the
Act are dependent upon which branches of the forks are selected. In

some instances the Act has decided in advance which branch to take

and in others provides some guidelines for making the decision, but in

others the finders of fact and law are on their own. This discussion

has attempted to identify some of each of those instances.

The way is not, however, through completely alien territory. The
general terrain has been traversed many times before on different path-
ways. It has been the thesis of this Article that the Comparative Fault

Act should not be viewed as a complete displacement of principles af

accountability that have been developed in the common law of tort.
The domain of tort liability remains essentially the same as prior to the

adoption of comparative fault. Significantly, the apportionment principle

permits us to traverse that domain in a manner much different than
before. The parties concerned are now permitted to share in the benefits
and detriments of that method of travel on a much more equitable basis
than under traditional systems. Yet the lessons of the past, the principles,

policies, and pragmatics already developed in the common law, should
be helpful elements in the most important decisions to be made regarding
the direction the courts should take along the comparative fault path.

Some of those principles, policies, and pragmatics have been highlighted
here in an attempt to generate thinking in preparation for those decisions.

This is not to say that the journey will be an easy one. Application

of the Act in even the limited sense of mechanics is a fairly complex

proposition. When viewed as an overlay upon the preexisting foundation
of tort liability, as this Article has attempted to do, many difficult issues
arise which have not, and in some instances should not have been,
answered in the Act. In some cases, because of the Act's expansive

definition of "fault," perhaps the foundations of Hability will have to

be readjusted to accommodate the overlay of the apportionment principle

superstructure. Attorneys and judges should not, however, lose sight of

the principles, policies, and pragmatics that form those foundations. To
assist juries performing the apportionment function, lessons of the past

should unhesitantly be brought to bear upon the issues that arise. There
is room for healthy disagreement about which branches of the path
should be taken, but judges and juries should not in the face of that



S60 ISDIANA LAW REVIEW [Vol. 17:687

disagreement resign themselves out of frustration to arbitrary, mechanical

"easy ways out." The new system, in comparison to the old, is complex

and difficult to apply. For awhile, it will seem cumbersome to those

of us accustomed to the quick simple answers provided by the contrib-

utory negligence system. Yet the old system was more than just a series

o'i results. It was and remains a system of thought from which we have

learned lessons about the way the law ought to fashion remedies for

harms.
Likewise, where those lessons teach that a clear break from concepts

outmoded by comparative fault is wise, attorneys and judges should

unhesitatingly step in the new direction and assist the jury through the
new territory. Officers of the court should resist temptations to simply

turn hard questions over to jurors in hopes that they will "work something

out." The apportionment of fault, as this discussion has attempted to

demonstrate, is not simply an unprincipled factual determination of

"compromise" verdicts. Nor is it a matter of simple, mechanical "yes

or no" decisionmaking. Our formal system of dispute resolution places

an awesome responsibility upon jurors and requires them to discharge

that responsibility through a series of exceedingly difficult decisions. On
the basis of sometimes sketchy and circumstantial evidence, we require
them to decide the existence or nonexistence of a fact upon which the

financial and emotional interests of people depend. As attorneys working

daily within the system, we sometimes lose sight of the difficulty of

such decisions and the pressures they bring to bear upon fact finders.

A question of whether the defendant failed to place guards and warnings
around her street excavation may seem a fairly simple matter of ob-
servation of physical attributes, but destruction of the scene from the

effects of the ensuing crash of the plaintiff's vehicle comphcate the

otherwise easy decision. Deciding whether the defendant was at fault in

leaving the excavation unprotected may not be a matter of particular
difficulty in the majority of cases. The significance of that decision,

and its underlying factual determination, for the fortunes of the disputants

demands that the officers of the court and the jury not take it lightly.

Whether the plaintiffs vehicle was out of control when it hit the
defendant's excavation may be another simple decision of fact. If it
was, that complicates the question of whether the defendant's fault was

a cause of the plaintiff's injuries. Whether the plaintiff was at fault in

allowing the vehicle to get out of control adds another compHcation.

Even in the traditional contributory negligence system, jurors need careful

assistance in working their way through cases like this.^^^ Under com-
parative fault, a complicated and difficult overlay has been placed upon

all cases, whether factually simple or complicated. Now jurors must not

'"^The hypothetical facts are a "modernization" of the facts in Stacy v. Knickerbocker

Ice Co., 84 Wis. 614, 54 N.W. 1091 (1893).



1 984] FIRST GLANCE 86

1

only decide whether the defendant's and plaintiff's acts and omissions

constitute "fault," they must somehow act as if that "fault" is quan-
tifiable and assign precise percentages of that "fault" to the parties.

Conscientious jurors will require a great deal of assistance in such

decisions. Conscientious attorneys and judges will not send those jurors

off to the deliberation room with the mere admonition to do their best
and a hope that they will.

The comparative fault system does not cast the officers of the court

into the journey without tools of assistance. Extremely important prin-

ciples of law, old and new, exist to guide the ultimate assignment of

responsibility. This Article has attempted, on a somewhat selective basis,

to raise some of the issues that will arise during the journey, to highlight

some of the principles pertinent to those issues, and to suggest some

methods for resolving those issues in the context of comparative fault.